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Shipman  on  Common-Law  Pleading  (3d  Ed). 

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Smith's   Elementary   Law. 

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CIL^IT— k 


HANDBOOK 


OF  THE 


.AW  OF  CONTRACTS 


BY  WM.  L.  CLARK,  JR. 

ADTHOR  OF  Clark's  handbook  of  criminal  law, 
Clark's  HAhfOBOOK  of  corporations,  btc,  btc. 


THIRD  EDITION 
BY  ARCHIBALD  H.  THROCKMORTON 

PROFESSOR  OF   LAW,    INDIANA   UNIVERSITY 


ST.      PAUL 

WEST    PUBLISHING    CO. 

1914 


COPYBIGHT,   18&4' 
BY 

WEST  PUBLISHING  COMPANY 


Copyright,  1904 

BY 

WEST  PUBLISHING  COMPANY 


COPYBIGHT,    1914 
BY 

WEST  PUBLISHING  COMPANY 
(Clabk  Cont.3d  Ed.) 


PREFACE  TO  THE  THIRD  EDITION 


The  object  of  the  editor  in  preparing  this  edition  of  Mr.  Clark's 
work  has  been  to  make  a  careful  revision  of  both  text  and  notes. 
In  the  text,  a  few  changes  have  been  made,  as,  for  example,  in 
the  passages  treating  of  offers  under  seal,  consideration,  and  re- 
leases.    Numerous  additions  have  also  been  made,  the  most  im- 
portant of  which  have  been  for  the  purpose  of  a  more  adequate 
treatment  of   subjects   of   recent   development,   such  as   contracts 
in  restraint  of  trade  or  tending  to  the  establishment  of  monopoly. 
The  notes  have  been  expanded,  and  have  been  increased  in  number 
to  the  extent  of  about  twenty  per  cent.    In  all,  about  one  thousand 
new  cases   have   been   cited.     These   consist  principally   of   cases 
^        decided  since  the  publication  of  the  second  edition,  and  have  been 
:;^        selected,  not  for  their  cumulative  effect,  but  because  they  support 
^         new  text,  or  contain  statements  of  new  principles  or  valuable  dis- 
^ft        cussions  of  old  ones.     Cases  the  names  of  which  are  printed  in 
,        bold  type  are  those  found  in  Throckmorton's  Cases  on  Contracts, 
which  was  prepared  especially  for  use  with  this  work.     Appended 
to  the  notes  are  citations  to  the  sections  of  the  Century  Digest 
and  the  Decennial  Digest    (Key-No.),  where  may  be   found   ex- 
haustive collections  of  cases  in  point.    The  chapter  on  Agency  has 
been  omitted,  as  that  topic  is  now  the  subject  of  a  separate  course 
in  practically  all  law  schools.     It  has  been  thought  wise,  however, 
to  retain  the  chapter  on  Quasi  Contracts,  principally  for  the  ben- 
efit of  the  large  number  of  schools  which,  as  yet,  have  no  separate 
course  in  that  subject. 


Bloominqton,  Ind.,  January  24,  1914.  A    H    T 


PREFACE  TO  THE  SECOND  EDITION 


In  preparing  the  present  edition  the  editor  has  had  the  benefit 
o^f  suggestions  made  by  many  instructors  who  have  used  Mr. 
Clark's  book  in  the  classroom.  Some  new  matter  has  been  added, 
which  has  led  to  the  condensation  of  portions  of  the  original  text; 
and  some  cases  formerly  cited  have  been  omitted  to  make  room 
for  more  recent  cases,  but  the  editor  has  endeavored  to  retain  all 

(V) 


434886 


VI  PREFACE   TO   THE    SECOND    EDITION 

leading  cases  cited  by  Mr.  Clark.  The  chapters  on  Agency  and 
Quasi  Contracts,  although  perliaps  somewhat  beyond  the  scope 
of  an  elementary  book  on  Contracts,  have  been  retained  with  little 
change,  for  the  benefit  of  schools  which  do  not  make  these  topics 
the  subjects  of  separate  courses. 

The  publishers  have  adopted  the  device  of  printing  in  bold  type 
the  names  of  cases  cited  in  the  notes  which  are  found  in  certain 
of  the  collections  of  leading  cases.  The  cases  so  printed  are  to 
be  found  in  Hopkins'  Cases  on  Contracts,  Langdell  &  Williston's 
Cases  on  Contracts,  Williston's  Cases  on  Contracts,  Huft'cut  & 
Woodruflf's  American  Cases  on  Contracts,  Keener's  Cases  on  Con- 
tracts, and  Keener's  Cases  on  Quasi  Contracts. 

St.  Paul,  June  3,  1904.  Francis  B.  TiFFan\. 


PREFACE  TO  THE  FIRST  EDITION 


In  prijparing  this  work  the  object  has  been  to  present  the  gen- 
eral principles  of  the  law  of  contract  clearly  and  concisely,  with 
proper  explanations  and  illustrations, — not  to  make  a  digest. 
There  has  been  no  attempt  to  be  original  for  the  mere  sake  of 
originality.  Statements  of  rules  have  been  freely  taken  from  recog- 
nized authorities.  So  much  use  has  been  made  of  Sir  William  An- 
son's and  Mr.  Leake's  works,  that  acknowledgment  has  not  always 
been  made  in  the  notes.  A  general  acknowledgment  is  therefore 
made  here.  Where  matter  has  been  obtained  from  other  sources 
it  has  been  duly  acknowledged. 

Nearly  10,000  cases  have  been  cited.  Every  one  of  them  has 
been  personally  examined,  and  is  cited  because  in  point, — not  be- 
cause it  has  been  cited  by  some  other  writer,  or  in  some  other 
case,  or  because  it  is  found  in  the  digests.  A  few  cases  have  been 
cited  for  their  valuable  dicta,  or  because  they  collect  and  discuss 
the  cases,  but  in  most  instances  the  cited  case  will  be  found  to 
embody  an  actual  decision  directly  in  point.  Where  a  number  of 
decisions  have  been  cited  to  the  same  point,  the  leading  cases  and 
those  best  illustrative  of  the  principle  involved  have  been  cited  first. 

St.  Paul,  Minn.,  November  15,  1894.  W.  L.  C,  Jr. 


TABLE  OF  CONTENTS 


CHAPTER  I 

DEFINITION,  NATURE,  AND  REQUISITES  OF  CONTRACT  IN  GENERAL 

eectlon  Page 

1-2.    Contract    Defined 1-2 

3.  Agreement    3-5 

4.  Obligation    6-7 

5.  Concurrence  of  Agreement  and  Obligation 7-11 

6.  Promise    11-12 

7-9.    "Void,"  "Voidable,"  and  "Unenforceable'^  Agreements 12-13 

10.    Essentials  of  Contract ,  14 


CHAPTER  II 

OFFER  AND  ACCEPTANCE 

11-13.    In    General 15-17 

14-15.    Communication  by  Conduct— Implied  Contracts 18-22 

16.  Communication   of    Offer 22-25 

17.  Necessity  and   Effect  of  Acceptance 25-26 

18-20.    Communication   of   Acceptance 27-34 

21.    Character,  Mode,  Place,  and  Time  of  Acceptance 34-39 

22-23.    Revocation   of   Offer 39—14 

24.  Lapse  of  Offer 44-46 

25.  Offers  to  the  Public  Generally 47-50 

26.  Offer  as  Referring  to  Legal  Relations 50-57 


CHAPTER  III 

CLASSIFICATION  OF  CONTRACTS— CONTRACTS  UNDER  SEAL  AND 
CONTRACTS  OF  RECORD 

27.  Clas.sification    of   Contracts 58-00 

28.  Contracts  of  Record 60-62 

29.  Contracts  Under  Seal 62-63 

30-32.    How  Contracts  Under  Seal  are  Made 63-69 

33.    Characteristics  of  Contract  Under  Seal 69-74 

34-    Necessity  for  Contract  Under  Seal 74-75 


CHAPTER  IV 

CONTRACTS  REQUIRED  TO  BE  IN  WRITIXG— STATUTE  OF  FRAUDS 

35-36.    In  General  of  Requirement  of  Writing 76-7S 

37.  Statute   of   Frauds— In   (icnoral 78-80 

38.  Contractu  within  Section  4 yO 

Ci^AJtK  Cont.(3d  Ed.)  (vU) 


vm 


TABLE   OF   CONTENTS 


Section  Pag» 

39.  Promise  by  Executor  or  Administrator 81 

40.  Promise  to   Answer  for  Debt,  Default,  or   Miscarriage 

of    Another 81-89 

41.  Agreement  in  Consideration  of  Marriage 89-90 

42.  Contract  or  Sale  of  Lands 91-95 

43.  Agreement  Not  to  be  Performed  within  One  Year 95-101 

44-49.  Form    Required 101-113 

50-51.  Effect  of  Noncomplinnoe 11  t-121 

52-55.  Contracts  within  Section  17 ,....,...,..,.. 121-126 

56.  Acceptance  and   Receipt 127-130 

57-58.  Earnest  and  Part  Payment 180-131 

59.  Form  Required .  . , 131-132 

GO.  Effect  of  Noncompliance 132 


CHAPTER  V 

CONSIDERATION 

61-62.    Consideration    Defined 133-137 

63-64.    Necessity  for  Consideration,  and  Presumption 137-140 

65-66.    Adequacy  of  Consideration 140-144 

67.    Sufficiency   or   Reality   of  Consideration 144-145 

68-70.           Mutual    Promise?  -Mutuality 145-150 

71-73.           Forbearance  to  Exercise  a  Right 150-156 

74-76.           Doing  What  One  is  Bound  to  Do 15(5-166 

77-78,           Impossible   and  Vague  Promises 16G-168 

79.  Legality  of  Consideration 168 

80.  Consideration  in  Respect  of  Time— Past  Consideration 109-178 


CHAPTER  VI 


CAPACITY  OF  PARTIES 

81.    In    General 178 

82-83.    Political  Status— States  and  United  States 178-180 

84.           Foreign  States  and  Sovereigns 181 

85-88.           Aliens    181-183 

89.  Convicts  183-184 

90.  Professional    Status 184-185 

91-94.    Infants— In    General 185-192 

95-97.           Liability  for  Necessaries 192-199 

98.           Ratification  and  Avoidance 200-202 

99-lOL           Who  may  Avoid  Contract   202-203 

102-104.           Time  of  Avoidance 204-207 

105-107.           What  Amounts  to   Ratification 207-211 

108.  What  Amounts  to  Disaffirmance 211-212 

109.  Extent  of  Ratification  or  Disaffirmance 212-213 

110-111.           Return  of  Consideration 213-217 

112-114.           Effect  of  Ratification  and  Disaffirmance 218-219 

115-116.           Torts  in  Connection  with  Contracts 220-223 

117.    Insane  Persons— In   General 223-230 

118-121.           Ratification  and  Avoidance 231-233 

122-123.    Drunken    Persons 233-235 

124.    Married    Women 236-240 

125-128.    Corporations   240-243 


TABLE   OF   CONTENTS 


IX 


CHAPTER  VII 


REALITY  OF  CONSENT 

Section  Page 

r29.  In    General 244-245 

130-131.  Mistake    245-257 

132-134.  Effect— Remedies    257-25S 

135-138.  Misrepresentation   259-271 

139.  Fraud   272-290 

140-141.  Effect— Remedies    290-297 

142-144.  Duress    297-305 

145-146.  Undue   Influence 305-313 


CHAPTER  VIII 

LEGALITY  OF  OBJECT 

147.  In    General 314-315 

148.  Classification  of  Unlawful  Agreements 315 

149.  Agreements  in  Violation  of  Positive  Law 315-316 

150.  Breach  of  Rules  of  Common  Law 316-320 

151.  Breach   of   Statute— Constitutional   Law 320-321 

152.  Prohibition  by  Statute 321-324 

153.  Particular  Agreements  in  Breach  of  Statute 324-348 

154-155.    Agreements  Contrary  to  Public  Policy 348-350 

156.  Agreements  Tending  to  Injure  the  Public  Service 350-362 

157.  Nonofficial    Corruption 362-363 

15S-1G0.           Perversion  or  Obstruction  of  .lustice 364-369 

161.  Encouragement  of  Litigation — Champerty  and  Maintenance  370-376 

162.  Agreements  of  Immoral  Tendency 376-377 

163.  Agreements  Tending  to  Fraud  and  Breach  of  Trust 378-380 

164.  Agreements  in  Derogation  of  the  Marriage  Relation 380-384 

165.  Agreements  in  Derogation  of  Parental  Relation   384 

166-169.            Agreements  in  Restraint  of  Trade 384-303 

170-172.           Unlawful  Combinations — Monopolies,  Trusts,  etc 393-401 

173-174.           Exemption  from  Liability   for  Negligence 401-405 

175.    Effect  of  Illegality— Agreements  Partly  Illegal 405-110 

176-177.            Object  Unlawful   but   Intention    Innocent 410-412 

178-180.            Object  Innocent  but  Intention  Unlawful 412-418 

181.           Promises  to  Pay  Money  Due  on  Illegal  Transactions 418—122 

182-185.           Relief  of  Party  to  Unlawful  Agreement 423-432 

186.    Conflict  of  Laws— In  Space 432-437 

1S7.           In    Time 432-437 


CHAPTER  IX 
OPERATION  OP  CONTRACT 


188.    Limits  of  Contractual  Relation— In  General 438-440 

189-190.            Imposing  Liability  on  Third  Persons 440-141 

191-192.           Conferring   Rights  on  Third  Persons 442—152 

193.  Assiirnment  of  Contracts — In  General 452 

194.  Assigiimont  of  Liabilities  by  Act  of  Parties 453-454 

195-197.           Assignment  of  Rights  by  Act  of  Parties 454-467 


X  TABLE   OF   CONTENTS 

Section  Page 

198.  Assignment  by  Operation  of  Law 407 

199.  On  Transfer  of  Interests  in  Land 467-472 

200.  On   Marriage 472-473 

20L  On    Death 473-474 

202.    Joint  and  Several  Contracts— In  General 475 

203-204.  Joint    Contracts 475-479 

205-206.  Several   Contracts 479-480 

207.  Contracts  both  Joint  and  Several 480-481 

208.  Contribution  between  Joint  Debtors 481-482 


CHAPTER  X 


INTERPRETATION  OF  CONTRACT 

209-213.    Rules  Relating  to  Evidence— In  General— Parol  Evidence 483^85 

214-215.  Proof  of  Document 486-487 

216.  Evidence  as  to  Fact  of  Agreement 4S.8-490 

217.  Evidence  as  to  Terms  of  Contract 490-501 

218-220.    Rules  of  Construction— General   Rules 501-511 

221.  Rules  as  to  Time 512-514 

222-223.  Rules  as  to  Penalties  and  Liquidated  Damages 515-519 

224.  Joint  and  Several  Contracts 519-521 


CHAPTER  XI 


DISCHARGE  OF  CONTRACT 

225.    In  -General 522-523 

226-227.    By  Agreement— In   General 523 

228-232.  Waiver,  Cancellation,  or  Rescission 52,3-526 

233-234.  Substituted    Contract 526-531 

235.  Form  of  Discharge  by  New  Agreement 531-534 

236.  Conditions    Subsequent 534-538 

2.37,    By  Performance— In    General •  539-543 

238.  Payment    544-552 

239.  Tender     552-556 

240-241.    By  Breach— In  General 556-557 

242.  Forms  of  Discharge  by  Breach 557 

243-244.  Renunciation  of  Contract 557-562 

245.  Impossibility  Created  by  Party 562-564 

246.  Breach  by  Failure  of  Performance 561-565 

247-248.  Independent  Promises >56,5-574 

249-253.  Conditional    Promises 575-590 

254.  By  Impossibility  of  Performance 590-598 

255.  By  Operation  of  Law 599 

256.  Merger   5M0-600 

257.  .Mteration  of  Written  Instrument 000-606 

258.  Proceedings    in    Bankruptcy 606 

259.  Remedies  on  Breach  of  Contract 60^-607 

260-263.  Damages    OOS-611 

264.  Specific    Performance 611-614 

265.  Discharge  of  Right  of  Action 614 

266.  By  the  Consent  of  the  Parties 614-617 

267.  By   Judgment 01 7-619 

268-269.  By  Lapse  of  Time 619-622 


TABLE   OF   CONTENTS 


CHAPTER  XII 

QUASI  CONTRACT 

Sertlon  p^^^ 

270.  In    General 623-627 

271 .  Money  Paid  for  the  Use  of  Another ,]]  G27-630 

272.  Money  Received  for  the  Use  of  Another '.,'/,  630-643 

273.  Recovery  for  Benefits  Conferred 1  !*..*. !  G44-651 


TABLE  OF  CASES  CITED 

(Page  653) 

INDKX 
(Page  735) 


This  volume  contains 
Key- Number  Annotations 

TKat  IS  to  say,  for  every  f>oint  of  law  whicK  is  stated  or 
aiscussea  in  the  text,  and  in  suf){)ort  of  wIucK  cases  are 
cited,  tnere  is  added  to  the  author's  note  a  citation  to  tlie 
Key-Numoer  section  or  sections  in  tke  Decennial  Digest 
or  m  tne  K-ey-NumDcr  Series,  under  wIucK  all  cases  di- 
rectly involving  that  t)oint  have  been  digested.  A  similar 
citation  to  tne  Century  Digest  is  given,  cxcej)t  wKere  tlie 
t)nncij)le  involved  is  one  on  wKicK  no  case  law  existed 
prior  to  1897, 


Claek  Cont.(3d  Ed.)  (xli)t 


HANDBOOK 


OF  THE 


LAW  OF  CONTRACTS 

THIRD  EDITION 


CHAPTER  I 


DEFINITION,   NATURE,   AND   REQUISITES   OF   CONTRACT   IN 

GENERAL 
1-2.     Contract  Defined. 

3.  Agreement 

4.  Obligation. 

5.  Concurrence  of  Agreement  and  Obligatloa. 

6.  Promise. 

7-9.     "Void,"   "Voidable,"   and  "Unenforceable"  Agreementa. 
10.     Essentials  of  Contract 


CONTRACT  DEFINED— BROADEST  SENSE 

L  A  contract,  in  its  broadest  sense,  is  an  agreement  whereby  one 
or  more  of  the  parties  acquire  a  right,  in  rem  or  in  per- 
sonam, in  relation  to  some  person,  thing,  act,  or  forbear- 
ance.   It  may  be,  in  its  inception: 

(a)  Executory;    that  is,  where  an  obligation  is  assumed  by  one 

or  both  parties  to  do  or  to  forbear  from  doing  some  act. 
The  rights  acquired  are  rights  in  personam. 

(b)  Executed;    that  is,  where  everything  is  done  at  the  time  of 

agreement,  and  no  obligation  is  assumed,  as  in  the  case 
of  a  conveyance  of  land  without  covenants,  or  a  sale  and 
immediate  delivery  of  goods  for  cash  and  without  war- 
ranty.^ Executory  contracts  when  fully  performed  are 
also  said  to  be  executed. 

1  The   propriety   of  callins  sucla  an  agreement  a   •outract  has  been  ques- 
tioned.    Post,  p.  8,  note  19. 

Cl-ABK  CoNT.r^il)  r.D.) 1 


DEFINITION,  NATURE,  AND   REQUISITES    OF   CONTRACT         (Ch.  1 


SAME— PROPER  SENSE 

2.  A  contract  in  its  narrower,  and  more  proper,  sense  is  an  execu- 
tory contract.  It  is  the  result  of  the  concurrence  of  agree- 
ment and  obligation,  and  may  be  defined  as  an  agreement 
enforceable  at  law,  made  between  two  or  more  persons, 
by  which  rights  are  acquired  by  one  or  more  to  acts  or 
forbearances  on  the  part  of  the  other  or  others.* 

It  has  been  said  that  "a  contract  becomes  executed  when  all  is 
done  that  its  terms  require  to  be  performed.  Until  that  situation 
is  attained  the  contract  is  executory."  *  When  we  speak  of  con- 
tracts we  generally  mean  executory  contracts,  and  it  is  of  this  kind 
of  contract  principally  that  this  work  is  to  treat.  A  contract  in 
this  sense  results  from  the  combination  of  the  two  ideas  of  "agree- 
ment" and  "obligation."  It  is  that  form  of  agreement,  or  meeting 
of  minds,  which  directly  contemplates  and  creates  an  obligation; 
and  the  contractual  obligation  is  that  form  of  obligation  which 
springs  directly  from  agreement.  It  is  necessary,  therefore,  to  un- 
derstand clearly  what  is  meant  by  the  terms  "agreement"  and  "ob- 
ligation," and  how  they  may  or  may  not  concur  so  as  to  create  a 
contract. 


2  The  following  are  some  of  the  definitions  given  In  the  booljs: 

"An  agreement  enfoi'ceable  at  law,  made  between  two  or  more  persons,  by 
which  rights  are  acquired  by  one  or  more  to  acts  or  forbearances  on  the  part 
of  the  other  or  others."     Anson,  Cont.  (Sth  Ed.)  9. 

"Every  agreement  and  promise  enforceable  by  law  is  a  contract"  Pol. 
Cont.  1. 

"An  agreement,  upon  sufficient  consideration,  to  do  or  not  to  do  a  particu- 
lar thing."     Bl.  Comm.  442 ;    2  Kent,  Comm.  449. 

"An  agreement  between  two  or  more  parties  for  the  doing  or  the  not  doing 
of  some  particular  thing."    1  Pars,  Cont.  6. 

"A  contract  or  agreement  not  under  seal  may  be  defined  to  be  an  engage- 
ment entered  into  between  two  or  more  persons,  wherebj',  in  consideration 
of  something  done  or  to  be  done  by  the  party  or  parties  on  one  side,  the 
party  or  parties  on  the  other  promise  to  do  or  omit  to  do  some  act"  Chit 
Cont  7. 

"A  contract  is  a  promise  from  one  or  more  persons  to  another  or  others, 
either  made  in  fact  or  created  by  law,  to  do  or  refrain  from  some  lawful 
thing;  being  also  under  the  seal  of  the  promisor,  or  being  reduced  to  a  judi- 
cial record,  or  being  accompanied  by  a  valid  consideration,  or  being  executed 
and  not  being  in  a  form  forbidden  or  declared  inadequate  by  law."  Bish. 
Cont  §  22.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  i;    Cent.  Dig.  §  1. 

3  Leadbetter  v.  Hawley,  59  Or.  422,  117  Pac.  2S9,  505.  See  ''Contracts," 
Dec.  Dig.  {Key-No.)  §  6;    Cent.  Dig.  §  S. 


§    3)  AGREEMENT 


AGREEMENT 

3.  Agreement  is  the  expression  by  two  or  more  persons,  either  by 
words  or  by  conduct,  of  a  common  intention  to  affect  the 
legal  relations  of  those  persons.*  There  must  be  a  meet- 
ing of  two  minds  in  one  and  the  same  intention. 

From  the  very  nature  of  agreement  the  first  essential  is  the  con- 
sent of  the  parties.  There  must  be  a  meeting  of  two  minds  in  one 
and  the  same  intention.  In  the  absence  of  this  element  there  can 
be  no  agreement,  and,  therefore,  no  contract. 

Ttvo  Parties  Necessary 

It  is  manifest  that  at  least  two  parties  are  necessary.  There 
may  be  more  than  two,  but  there  cannot  be  less.  It  is  therefore 
impossible  for  a  man  to  make  an  agreement  or  contract  with  him- 
self."^ 

Distinct  Common  Intention 

It  is  also  essential  that  there  be  a  distinct  intention,  and  an  in- 
tention which  is  common  to  both  parties ;  or,  as  it  is  sometimes 
expressed,  the  parties  must  assent  to  the  same  thing  in  the  same 
sense.*  If  there  is  doubt  or  difference,  there  is  no  meeting  of 
minds,  and  hence  no  agreement.  If  a  person,  when  asked  whether 
he  will  do  a  certain  thing,  says,  "Very  possibly,"  there  is  doubt, 
and  no  agreement  is  reached;  ^  and  if  he  says  he  will  do  something 
else,  there  is  a  difference,  and  therefore  no  agreement. 

4  See  Anson,  Cont.  (4th  Ed.)  3.  "(1)  An  agreement  is  an  act  In  the  law, 
whereby  two  or  more  persons  declare  their  consent  as  to  any  act  or  thing  to 
be  done  or  forborne  by  some  or  one  of  those  persons  for  the  use  of  the  others 
or  other  of  them.  (2)  Such  declaration  may  consist  of  (a)  the  concurrence 
of  the  parties  in  a  spoken  or  written  form  of  words  as  expressing  their  com- 
mon intention,  or  (h)  a  proposal  made  by  some  or  one  of  them,  and  accepted 
by  the  others  or  other  of  them."     Pol.  Cont.  1. 

5  Thus  a  promise  made  by  a  person  in  his  individual  capacity  to  himself 
as  executor  is  void.  See  GORHAM'S  ADM'R  v.  MEACHAM'S  ADM'R,  63 
Vt  231,  22  Atl.  572,  13  L.  R.  A.  676,  Throckmorton  Cas.  Contracts,  3,  in 
which  it  is  said,  per  Tyler,  J.:  "Until  the  concurrence  of  the  two  minds, 
there  Is  no  contract."  Another  reason  why  a  man  cannot  enter  into  a  con- 
tract with  himself  is  because  he  cannot  be  under  a  legal  obligation  to  him- 
self.    I'ost.  T).  G.     Bee  '•Vu)ttracts,"  Dec.  Dip.  {Key-No.)  88  11-13;    Cent.  Dig. 

IS  \2^Q. 

«  American  Can  Co.  v.  Agricultural  Ins.  Co.  of  Watertown,  N.  Y.,  12  Cal. 
App.  133,  106  Pac.  720;  Luckey  v.  St  Louis  &  S.  F.  R.  Co.,  133  Mo.  App. 
5S9,  113  S.  W.  703.    Bee  "Contracts^'  Dec.  Dig.  (Kcp-No.)  §  14;   Cent.  Dig.  §  48. 

7  "I  think  I  might  purchase  your  horse  at  $2(XJ,  the  price  you  ask  me,"  does 
not  constitute  an  acceptanc-e  of  an  offer  to  sell  tbe  horse  at  $200.  Stagg 
V.  Compton,  81  Ind.  171.  Hee  "Contracts,"  Dec.  Dig.  (Key-^io.)  %  14;  Cent. 
Dig.  8  J,S. 


4  •  DEFINITION,  NATURE,  AND    REQUISITES    OF   CONTRACT  (Ch.  1 

Communication  of  Intention 

Agreement  further  imports  that  there  shall  be  a  mutual  com- 
munication between  the  parties  of  their  intentions  to  agree,  for 
without  this  neither  could  know  the  state  of  the  other's  mind. 
The  law,  therefore,  judges  of  an  agreement  between  two  persons 
exclusively  from  those  expressions  of  their  intentions  which  are 
communicated  between  them.'  Mere  uncommunicated  intention, 
though  common  to  both  parties,  cannot  constitute  agreement.  If 
a  person  asks  another  if  he  will  do  something,  and  the  latter  makes 
no  reply,  there  is  no  agreement,  even  though  he  may  intend  to  do 
it.  A  secret  acceptance  of  a  proposal  cannot  constitute  agreement; 
nor,  it  is  said,  can  agreement  result  where  the  intention  of  a  party 
is  communicated,  not  to  the  other  party,  but  to  a  third  person," 
So,  the  fact  that  a  party  has  changed  his  mind  after  making  an 
offer  and  does  not  really  intend  to  contract  is  of  no  significance 
if  he  does  not  communicate  his  change  of  intention  to  the  other 
party  before  acceptance.  And  if  one  party  has  reasonably  led  the 
other  to  believe  that  he  is  making  an  offer  the  other  may,  by  ac- 
ceptance, convert  such  apparent  offer  into  a  contract  although  in 
fact  no  offer  was  intended.  In  like  manner  if  a  person  to  whom  an 
offer  has  been  submitted  makes  such  statement  or  does  such  act 
with  respect  thereto  as  would  lead  an  ordinarily  prudent  person, 
acting  in  good  faith,  to  believe  that  the  proposition  had  been  ac- 
cepted, and  the  proposer  accordingly  acts  upon  that  assumption, 
a  contract  results,  notwithstanding  secret  intentions  of  the  offeree 
not  to  accept.^"  As  we  shall  see,  communication  may  be  by  con- 
duct as  well  as  by  words. 

Reference  to  Legal  Relations 

An  agreement,  to  be  recognized  as  such  by  the  law,  so  as  to  con- 
stitute a  contract,  must  be  "an  act  in  the  law ;"  ^^    that  is,  it  must 

8  Rodgers,  McCabe  &  Co.  v.  Bell,  156  N.  C.  378,  72  S.  E.  817  [cit.  Clark  on 
Contracts,  pp.  2.  3].  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig. 
§§  82-92. 

9  Leake,  Cont.  8.  Intention  may  be  communicated  to  the  agent  of  a  party, 
but  this  is  equivalent  to  communication  to  the  party  himself.  "In  the  case 
in  hand,"  it  was  said,  "the  plaintiff  determined  to  accept.  But  a  mental  de- 
termination not  indicated  by  speech,  or  put  in  course  of  indication  by  act 
to  the  other  party,  is  not  an  acceptance  which  will  bind  the  other.  Nor  does 
an  act  which  in  itself  is  no  indication  of  an  acceptance  become  such  because 
accompanied  by  an  unevinced  mental  determination."  WHITE  v.  CORLIES, 
46  N.  Y.  467,  Throckmorton  Cas.  Contracts,  1.  See  "Contracts,^''  Dec.  Dig. 
{Key-No.)  §  22;    Cent.  Dig.  §§  82-d2. 

loNorthrup  v.  Colter,  150  Mo.  App.  639,  131  S.  W.  364.     See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  16;   Cent.  Dig.  §§  49-56,  71-92. 
11  Pol.  Cont.  2. 


§    3)  AGREEMENT  ,5 

be,  on  the  face  of  the  matter,  capable  of  having  legal  effects ;  and 
therefore,  the  intention  of  the  parties  must  refer  to  legal  relations, 
so  that  the  courts,  which  can  only  deal  with  legal  relations,  may 
take  cognizance  of  it.  It  must  have  reference  to  the  assumption 
of  legal  rights  and  duties,  as  opposed  to  engagements  of  a  social 
character  and  engagements  of  honor.  If  a  person  agrees  to  sell 
another  a  horse,  the  agreement  refers  to  legal  relations,  and  may 
result  in  contract;  but,  if  a  person  agrees  to  go  to  another's  house 
to  dine,  the  intention  refers  merely  to  a  social  engagement,  and  no 
contract  results.    Legal  consequences  are  not  contemplated.^'* 

Consequences  must  Affect  the  Parties 

In  order  that  agreement  may  result  in  obligation,  so  as  to  con- 
stitute contract,  the  consequences  of  the  agreement  must  afifect  the 
parties  themselves;  otherwise  the  verdict  of  a  jury,  which  is  an 
agreement  between  the  jurors,  would  satisfy  the  requirements.^' 

12  It  has  been  said  that  we  may  accept  as  a  test  of  this  question  that  the 
Intention  must  relate  to  something  which  is  of  some  value  in  the  eye  of  the 
law,  something  which  can  be  assessed  at  a  money  value.  Anson,  Cont  2. 
It  is  true  that  the  matter  of  an  agreement  must  be  reducible  to-a  money 
value,  to  be  enforceable ;  but  this  necessity  does  not  spring  from  the  nature 
of  agreement.  See  post,  p.  6.  Furthermore,  there  may  be  agreements  which 
will  meet  this  requirement,  and  yet  will  not  result  in  contract,  because  of 
the  intention  of  the  parties;  that  is  to  say,  because  of  failure  to  refer  to  le- 
gal relations.  A  man  who  invites  another  to  dine  with  him,  or  perform  any 
other  social  function,  goes  to  expense  in  making  preparations,  and  if  the  en- 
gagement is  broken,  there  Is  a  loss  which  may  be  assessed  at  a  money  value, 
but  this  does  not  make  the  agreement  a  contract.  The  reason  Is  that  the 
parties  do  not  contemplate  legal  relations  and  consequences.  The  engage^ 
ment  is  merely  a  social  one.  The  fact  that  the  matter  contemplated  is  re- 
ducible to  a  money  value  does  not  make  the  agreement  a  contract,  unless,  in 
addition  to  this,  the  parties  Intend  to  affect  their  legal  relations.  Pol.  Cont. 
2,  note  (a).  See  Earle  v.  Angell,  157  Mass.  294,  32  N.  E.  164.  See  "Con- 
tracts," Dec.  Dig.  (Kev-No.)  §§  7,  U;    Cent.  Dig.  §§  9,  48. 

13  If  a  fund  Is  held  by  the  trustees  under  a  will,  to  be  paid  over  to  the 
testator's  daughter  on  her  marriage  with  their  consent,  and  they  give  their 
consent  to  her  marrying  J.  S.,  this  declaration  of  consent  affects  the  duties 
of  the  trustees  themselves,  for  It  is  one  of  the  elements  determining  their 
duty  to  pay  over  the  fund.  Still  it  is  not  an  agreement,  for  it  concerns  no 
dntj'  to  be  performed  by  any  one  of  the  trustees  towards  any  other  of  them. 
There  is  a  common  duty  to  the  beneficiary,  but  no  mutual  obligation."  Pol. 
Cont.  3. 


DEFINITION,  NATURE,  AND   REQUISITES    OF   CONTRACT         (Ch.  1 


OBLIGATION 

4.  Obligation  is  a  control  exercisable  by  definite  persons  over  defi- 
nite persons  for  the  purpose  of  definite  acts  or  forbear- 
ances reducible  to  a  money  value.^* 

Obligation  is  a  legal  bond  or  tie  whereby  constraint  is  laid  upon 
a  person  or  group  of  persons  to  act  or  forbear  on  behalf  of  another 
person  or  group.  Since  there  can  be  no  contract  without  obligation, 
every  element  essential  to  the  creation  of  an  obligation  is  essential 
to  the  creation  of  a  contract. 

Two  Parties  Necessary 

From  the  very  nature  of  things,  two  persons  are  necessary. 
There  may  be  more  than  two,  but  there  cannot  be  less.  A  man 
cannot  be  under  a  legal  obligation  to  himself,  or  even  to  himself 
in  conjunction  with  others.  In  an  English  case,  where  a  man  had 
borrowed  money  from  a  fund  in  which  he  and  others  were  jointly 
interested,  and  covenanted  to  repay  the  money  to  the  joint  ac- 
count, it  was  held  that  he  could  not  be  sued  upon  his  covenant. 
"The  covenant,  to  my  mind,  is  senseless,"  said  Pollock,  C.  B.  "I 
do  not  know  what  is  meant,  in  point  of  law,  by  a  man  paying  him- 
self." ^^  And  in  a  Massachusetts  case  it  was  said  that  "it  is  a  first 
principle  that,  in  whatever  different  capacities  a  person  may  act, 
he  never  can  contract  with  himself,  nor  maintain  an  action  against 
himself.     He  can  in  no  form  be  both  obligor  and  obligee."  ^® 

The  Parties  Must  be  Definite 

The  parties  to  an  obligation  must  be  definite,  both  those  having 
the  right  to  exercise  control  and  those  bound.  A  man  cannot  be 
under  an  obligation  to  the  entire  community.  His  liabilities  to  the 
political  society  of  which  he  is  a  member  are  matters  of  public  or 
criminal  law.  Nor  can  the  whole  community  be  under  an  obliga- 
tion to  him.  The  correlative  right  on  his  part  would  be  a  right  in 
rem,    and   would    constitute   property,    as   opposed    to    obligation. 

14  Anson,  Cont.  (4th  Ed.)  7.  "By  'obligation'  we  mean  the  relation  that  ex- 
ists between  two  persons,  of  whom  one  has  a  private  and  peculiar  ri^ht  (that 
is,  not  a  merely  public  or  official  right,  or  a  right  incident  to  ownership  or  a 
permanent  family  relation)  to  control  the  other's  actions  by  calling  upon  him 
to  do  or  forbear  some  particular  thing."     Pol.  Cont.  3. 

15  Faulkner  v.  Lowe,  2  Elsch.  595.  See  ''Contracts,''  Dec.  Dig.  (Key-No.)  §§ 
11-U;    Cent.  Dig.  §§  ^2-48. 

16  Eastman  v.  Wright,  6  Pick.  (Mass.)  316.  And  see  Allin  v.  Shadburne"s 
Bx'r,  1  Daua  (Ky.)  68,  25  Am.  Dec.  121.  See,  also,  ante,  p.  3,  note  6.  Bee 
"Contracts,"  Dec.  Dig.  (Key-No.)  §§  11-U;    Cent.  Dig.  §§  4^-i8. 


§   5)  CONCURRENCE   OF   AGREEMENT   AND   OBLIGATION  7 

Whether  the  right  is  to  personal  freedom  or  security,  to  character, 
or  to  those  more  material  objects  which  we  commonly  call  prop- 
erty, it  imposes  a  corresponding  duty  on  all  to  forbear  from  mo- 
lesting the  right.  Suchja  right  is  a  right  in  rem.  It  is  of  the  es- 
sence of  obligation  that  the  liabilities  imposed  are  imposed  on  def- 
inite persons,  and  are  themselves  definite.  The  rights  which  it 
creates  are  rights  in  personam. ^^  There  are  apparent  exceptions 
to  this  rule  in  the  case  of  contracts  made  by  and  with  cities  and 
other  municipal  corporations  and  with  the  state.  The  state  repre- 
sents the  public,  and  such  is  also  the  case  with  municipal  corpora- 
tions, but  this  fact  does  not  prevent  contracts  with  them.  A  mu- 
nicipal corporation  or  the  state  is  a  definite  party,  distinct  from 
the  members  of  the  community. 

The  Rights  and  Liabilities  Must  he  Definite 

To  constitute  an  obligation  enforceable  in  law,  the  rights  and 
liabilities  given  and  imposed  must  be  definite.  In  other  words,  it 
must  relate  to  definite  acts  and  forbearances.  The  freedom  of  the 
person  bound  by  an  obligation  is  not  curtailed  generally,  but  is 
limited  in  reference  to  some  particular  act  or  series  or  class  of  acts. 
If  the  thing  to  be  done  or  forborne  is  so  indefinite  or  uncertain 
that  the  court  cannot  say  what  was  agreed  upon,  it  cannot  enforce 
the  agreement.^®  An  agreement  not  enforceable  creates  no  obliga- 
tion, and  therefore  cannot  result  in  contract. 

The  Thing  to  be  Done  or  Forborne  must  be  Reducible  to  a  Money 
Value 
The  matter  of  the  obligation — that  is,  the  thing  to  be  done  or 
forborne — must  possess,  or  must  be  reducible  to,  a  pecuniary 
value.  It  must  have  some  ascertainable  value,  in  order  to  distin- 
guish legal  from  moral  and  social  relations.  Gratitude  for  a  past 
kindness  cannot  be  measured  by  any  standard  of  value,  nor  can 
annoyance  and  disappointment,  caused  by  the  breach  of  a  social 
engagement.  Courts  of  law  can  only  deal  with  matters  to  which 
the  parties  have  attached  an  importance  estimable  by  a  standard 
of  value  of  which  the  courts  may  take  cognizance. 


CONCURRENCE  OF  AGREEMENT  AND  OBLIGATION 

5.  An  agreement  resulting  in  contract  is  that  form  of  agreement 
which  directly  contemplates  and  creates  an  obligation; 
and  the  contractual  obligation  is  that  form  of  obligation 
which  springs  directly  from  agreement. 

IT  Anson,  Cout  (4th  Ed.)  5.  *»  tsce  post,  y.  04. 


8  DEFINITION,  NATURE,  AND   REQUISITES    OF   CONTRACT  (Ch.  1 

Agreement  Broader  Term  than  Contract 

"Agreement"  is  a  broader  term  than  "contract,"  and  includes  acts 
in  the  law  of  two  kinds  besides  those  which  we  ordinarily  term  con- 
tracts : 

(1)  An  agreement,  for  instance,  may  not  create  an  obligation, 
and  therefore,  in  reason,  may  not  result  in  a  contract,  because  its 
effect  is  concluded  as  soon  as  the  parties  have  expressed  their  com- 
mon assent.  Such  are  conveyances  of  land  without  covenants,  gifts, 
and  sales  of  chattels  for  cash,  with  immediate  delivery,  and  without 
warranty.  The  agreement  of  the  parties  effects  at  once  a  transfer  of 
rights  in  rem,  and  leaves  no  obligation  subsisting  between  them. 
Such  agreements  are  called  "executed  contracts,"  but  they  create 
no  outstanding  contractual  obligation,  and  it  is  at  least  question- 
able whether  they  can  properly  be  termed  contracts.^®  It  is  other- 
wise if  the  conveyance  is  with  covenants  annexed,  or  if  the  sale  is 
on  future  delivery,  or  on  credit,  or  with  a  warranty. 

(2)  Again,  an  agreement  may  create  obligations  only  incidentally 
or  remotely,  and  therefore  not  constitute  a  contract;  the  essence  of 
contract  being  in  the  fact  that  the  direct  purpose  of  the  agreement 
is  to  create  an  obligation.  Such  agreements  have  the  characteristic 
just  alluded  to  of  effecting  their  main  object  immediately  upon  the 
expression  of  the  intention  of  the  parties,  but  they  differ  from  sim- 
ple conveyances  and  gifts,  not  only  in  creating  outstanding  obliga- 
tions between  the  parties,  but  sometimes  in  providing  for  the  com- 
ing into  existence  of  other  obligations,  and  those  not  between  the 
original  parties  to  the  agreement.  Marriage,  for  instance,  some- 
times erroneously  called  a  contract,  effects  a  change  of  status  from 
the  moment  the  consent  of  the  parties  is  expressed  before  a  compe- 
tent authority.  At  the  same  time  it  creates  obligations  between 
the  parties  which  are  incidental  to  the  transaction,  and  to  the  im- 
mediate objects  of  the  expression  of  consent  or  agreement.     So, 

19  There  Is  the  highest  authority  for  speaking  of  conveyances  of  land  with- 
out covenants,  gifts,  and  sales  of  goods  for  cash,  with  immediate  delivery, 
and  without  warranty,  as  executed  contracts.  2  Bl.  Comm.  44.3;  1  Story, 
Cont.  (4th  Ed.)  §  22;  Fletcher  v.  Peck,  6  Cranch,  87,  3  L.  Ed.  162.  The 
propriety,  however,  of  calling  such  agreements  contracts  has,  with  reason, 
been  questioned.  Anson,  Cont.  3.  It  is  of  the  essence  of  contract,  as  a  legal 
conception,  that  it  shall  contemplate  and  create  a  right  in  personam ;  that  it 
shall  impose  an  obligation  on  one  of  the  parties  to  do  or  forbear  from  doing 
some  act.  An  agreement  by  which  a  person  binds  himself  to  convey  land 
would  therefore  be  a  contract;  but  how  can  a  conveyance  be  called  a  con- 
tract? It  creates  no  obligation,  but,  at  the  very  moment  the  parties  agree, 
the  agreement  is  carried  out.  To  the  effect  that  an  executed  gift  is  not  a 
contract,  see  Wheeler  v.  Glasgow,  97  Ala.  700,  11  South.  758.  See  '-Con^ 
tracts,"  Dec.  Dig.  (Ketz-yo.)  §  6;  Cent.  Dig.  §  3;  "Vendor  and  Purchaser," 
Dec.  Dig.  {Key-'No.)  §  53;    Cent.  Dig.  §  84. 


§    5)  CONCURRENCE   OF   AGREEMENT   AND    OBLIGATION  9 

also,  a  settlement  of  property  in  trust  for  persons  unborn  effects 
much  more  than  the  mere  conveyance  of  a  legal  estate  to  the  trus- 
tee. It  imposes  on  him  incidental  obligations,  some  of  which  may 
not  come  into  existence  for  a  long  time.  It  creates  possibilities  of 
obligation  between  him  and  persons  who  are  not  yet  in  existence. 
These  obligations  are  the  result  of  agreement,  but  they  are  not 
contract.*" 
Sources  of  Obligation  "^ — Directly  from  Agreement 

Obligation  may  arise  directly  from  agreement.  Here  we  find  that 
form  of  agreement  which  constitutes  contract.  An  offer  is  made  by 
one  person  and  accepted  by  another,  so  that  one  consents  to  intend, 
and  the  other  to  expect,  the  same  thing;  and  the  result  of  this 
agreement  is  a  legal  tie,  binding  the  parties  to  one  another  in  re- 
spect to  some  future  act  or  forbearance. 

Same — Delict  or  Tort 

Obligation  may  arise  from  delict  or  tort.  This  occurs  where  a 
primary  right  to  forbearance  has  been  violated  ;  where,  for  instance, 
a  right  to  property,  to  security,  or  to  character  has  been  violated  by 
trespass,  assault,  or  defamation.  The  wrongdoer  is  bound  to  pay  to 
the  injured  party  whatever  damages  he  has  sustained.  Such  an  ob- 
ligation is  not  created  by  the  free  will  of  the  parties,  or  by  agree- 
ment, but  springs  up  immediately  upon  the  occurrence  of  the 
wrongful  act.  The  person  injured  has  a  cause  of  action' which  is 
said  to  arise  ex  delicto,  as  distinguished  from  such  as  arise  ex  con- 
tractu." 
Same — Breach  of  Contract 

Obligation  may  arise  from  breach  of  contract.  While  one  person 
is  under  promise  to  another,  the  promisee  has  a  right  against  the 
promisor  to  performance  of  the  promise  when  performance  becomes 
due,  and  to  the  maintenance  up  to  that  time  of  the  contractual  re- 
lation. But,  if  the  promisor  breaks  his  promise,  the  promisee's  right 
to  performance  has  been  violated,  and,  even  if  the  contract  is  not 
discharged,  a  new  obligation  springs  up, — a  right  of  action  for 
damages,  similar  to  that  which  arises  upon  a  delict  or  tort.  The 
cause  of  action  results  from  the  breach  of  contract,  and  is  said  to 
arise  ex  contractu. 

Same — Quasi  Contract 

There  are  certain  obligations  which  arise  neither  from  tort  nor 
from  contract,  but  which  are  imposed  by  law  without  assent  of  the 

20  Anson,  Cont.  (4th  Ed.)  3 ;  Wade  v.  Kalbfloisch,  58  N.  Y.  282.  17  Am.  Rep. 
250;  Ditson  v.  Dltson,  4  R.  I.  87;  Maynard  v.  Hill.  125  U.  S.  190,  8  Sup.  Ct 
72.3,  31  L.  Ed.  654 :  Watkins  v.  Watklns,  i:^  Mass.  83.  See  "Contracts," 
Dec.  Dip.  (Key-yo.)  §  10:    Cent.  Dig.  §§  21-JtO. 

21  Anson,  Cont.  (4th  Ed.)  7.  22  Leake.  Cont.  3. 


10  DEFINITION,  NATURE,  AND   REQUISITES    OF  CONTRACT         (Ch.  1 

party  bound.  These  obligations  are  not  contracts,  for  there  is  no 
agreement ;  but  they  are  clothed  with  the  semblance  of  contract  for 
the  purpose  of  remedy,  and  are  described  by  the  term  quasi  con- 
tract.^' Obligation  may  arise  from  the  judgment  of  a  court  of  com- 
petent jurisdiction  ordering  something  to  be  done  or  forborne  by 
one  party  in  respect  of  another.  This  kind  of  obligation  is  called  a 
"contract  of  record."  It  may  arise  from  entry  of  judgment  by  con- 
sent of  the  parties,  in  which  event  the  element  of  agreement  is  pres- 
ent; but,  on  the  other  hand,  it  may  arise  against  the  will  of  the 
party  bound  thereby,  in  which  case  there  is  no  element  of  agree- 
ment, and  therefore  no  true  contract.  Such  an  obligation  is  quasi 
contractual.** 

Again,  a  quasi  contractual  obligation  may  arise  by  the  acts  of  the 
parties.  A  person  pays  something  which  another  ought  to  pay,  or 
receives  something  which  another  ought  to  receive,  and  the  law 
imposes  on  him  the  duty  to  make  good  to  the  other  party  the  ad- 
vantage to  which  the  other  is  entitled.  The  term  "implied  con- 
tract" is  frequently  applied  to  obligations  of  this  class.  Its  use  is 
objectionable,  because  the  same  term  is  frequently  applied  to  true 
contracts  in  which  the  agreement  of  the  parties  is  evidenced  by 
conduct,  and  which  are  hence  called  "implied  contracts,"  in  distinc- 
tion to  contracts  in  which  the  agreement  is  evidenced  by  words, 
and  which  are  said  to  be  express."''^ 

Same — Indirectly  from  Agreement — Marriage — Trusts 

Finally,  obligation  may  spring  from  agreement,  and  yet  be  distin- 
guishable from  contract.  As  explained  in  speaking  of  agreement, 
this  is  the  case  with  obligations  incidental  to  such  acts  as  marriage 
and  the  creation  of  a  trust.  Contractual  obligations  may  arise  in- 
cidentally to  an  agreement  which  has  for  its  direct  object  the 
transfer  of  property.     In  the  case  of  a  conveyance  of  land  with  cov- 

23  City  of  Chicago  v.  Pittsburg,  C,  C.  &  St  L.  R.  Co.,  146  111.  App.  403  [af- 
firmed 242  111.  30,  89  N.  E.  648] ;  Leonard  v.  State,  56  Tex.  Cr.  R.  307,  120 
S.  W.  L83.  And  see  post,  p.  623.  Such  obligations  are  also  variously  called 
"implied  contracts"  and  "constructive  contracts."  Harty  Bros.  &  Harty  Co. 
V.  Polakow,  237  111.  559,  86  N.  E.  1085.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  5;    Cent.  Dig.  §  7;    "Judgment,"  Dec.  Dig.  {Key-No.)   §§  2,  S;    Cent.  Dig, 

§  11. 

2  4  Post,  p.  624. 

2  5  For  full  discussion  of  the  senses  in  which  the  term  "implied  contract"  Is 
used,  see  HERTZOG  v.  HERTZOG,  29  Pa.  465,  Throckmorton  Cas.  Con- 
tracts, 5;  Weinsberg  v.  St  Louis  Cordage  Co.,  135  Mo.  App.  553,  116  S.  W. 
461 ;  Harty  Bros.  &  Harty  Co.  v.  Polakow,  237  111.  559,  86  N.  E.  10S5.  See, 
also,  post,  p.  20.  see  "Contracts,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  S§ 
4-6. 


§    6)  PROMISE  11 

enants  annexed,  or  the  sale  of  a  chattel  with  a  warranty,  the  obliga- 
tion hangs  loosely  to  the  conveyance  or  sale,  and  is  so  easily  dis- 
tinguishable that  it  may  be  dealt  with  as  a  contract.  But  in  cases 
of  trust  or  marriage  the  agreement  is  far-reaching  in  its  objects, 
and  the  obligations  incidental  to  it  are  either  contingent,  or  at  any 
rate  remote  from  its  main  purpose  or  immediate  operation.  To 
create  an  obligation  is  the  one  object  which  the  parties  have  in  view 
when  they  enter  into  that  form  of  agreement  which  is  called  con- 
tract. 

PROMISE 

6.  A  promise  is  the  communication  by  a  person  of  an  intention  and 
willingness  to  be  bound  to  do  or  to  forbear  from  doing 
something  at  the  request  or  for  the  use  of  another,  when, 
but  not  before,  that  declaration  has  become  binding  by  its 
acceptance  by  the  promisee  so  as  to  create  an  obligation.^® 
A  promissory  expression  before  acceptance  is  merely  an 
offer  of  a  promise. 

We  are  in  the  habit  of  considering  as  the  essential  feature  of  con- 
tract a  promise  by  one  or  more  parties  to  another  or  others  to  do  or 
to  forbear  from  doing  certain  specified  acts ;  and  many  of  the  books 
use  the  term  "promise,"  rather  than  "agreement,"  to  define  con- 
tract. "In  an  agreement  as  the  source  of  a  legal  contract,"  it  is  said, 
"the  matter  intended  and  agreed  imports  that  the  one  party  shall 
be  bound  to  the  other  in  some  act  or  performance,  which  the  latter 
shall  have  a  legal  right  to  enforce."  The  signification  of  an  inten- 
tion to  do  some  act,  or  observe  some  particular  course  of  conduct, 
made  by  the'one  party  to  the  other,  and  accepted  by  him,  for  the 
purpose  of  creating  a  right  to  its  accomplishment,  is  called  a  prom- 
ise.^^ 

The  term  "promise"  is  used  to  signify  a  binding  promise,  as  op- 
posed to  a  mere  offer  of  a  promise.  A  promissory  expression 
amounting  to  an  offer  of  a  promise  does  not  become  a  promise  until 
it  becomes  binding  by  its  acceptance  by  the  person  to  whom  it  is 
made.  Before  it  is  accepted  it  is  a  mere  offer  of  a  promise,  called  in 
the  civil  law  a  "pollicitation."  =^*  It  must  also  be  noted  that  it  is 
not  every  statement  of  intention  that  will  amount  to  an  offer  of  a 
promise  which  by  acceptance  will  be  turned  into  a  promise.  An  of- 
fer differs  from  a  mere  statement  of  intention  in  that  it  imports  a 

2«  Anson,  Cout.  (4th  Ed.)  4;    Pol.  Cont.  1, 

»T  I^ake,  Cout  13.  as  See  post,  p.  26. 


12  DEFINITION,  NATURE,  AND   REQUISITES    OF  CONTRACT  (Ch.  1 

willingness  to  be  bound  to  the  party  to  whom  it  is  made.  If  a  per- 
son says  to  another,  "I  intend  to  sell  my  horse  if  I  can  get  $100  for 
it,"  there  is  no  oflfer  that  can  be  turned  into  an  agreement,  but 
merely  a  declaration  of  intention.  There  is  no  declaration  of  will- 
ingness to  be  bound.  If,  however,  he  says,  "I  will  sell  you  my 
horse  if  you  will  give  me  $100  for  it,"  there  is  an  offer,  and,  if  it  is 
accepted,  there  is  a  contract,  consisting  of  mutual  binding  promises 
to  deliver  the  horse  on  the  one  side,  and  to  accept  and  pay  for  it  on 
the  other. 

Looking  at  a  contract,  then,  in  the  light  of  a  promise,  we  may  say 
that  there  are  three  stages  necessary  to  the  making  of  that  sort  of 
agreement  which  results  in  a  contract :  (1)  There  must  be  an  offer  ; 
(2)  there  must  be  an  acceptance  of  the  offer,  resulting  in  a  promise ; 
and  (3)  the  law  must  attach  a  binding  force  to  the  promise,  so  as 
to  invest  it  with  the  character  of  an  obligation. 

The  promise  results  from  the  agreement  of  the  parties,  and  neces- 
sarily results  from  every  agreement  which  directly  contemplates 
and  creates  an  obligation.  The  agreement  makes  the  contract,  and 
the  promise  is  merely  a  feature  of  the  contract. 


VOID,  VOIDABLE,  AND   UNENFORCEABLE  AGREE- 
MENTS 

7.  A  void  agreement  is  one  that  is  entirely  destitute  of  legal  effect. 

8.  A  voidable  contract  is  one  that  is  capable  of  being  affirmed  or 

rejected  at  the  option  of  one  of  the  parties,  but  which  is 
binding  on  the  other. 

9.  An  unenforceable  contract  is  one  that  is  valid,  but  incapable  of 

being  sued  upon  or  proved. 

We  have  seen,  and  in  dealing  with  the  formation  of  contract  we 
shall  see  more  in  detail,  that  certain  requisites  are  essential,  and,  if 
they  are  absent,  the  contract  is  said  to  be  void.  By  this  it  is  meant 
that  it  has  no  legal  effect  whatever.  Clearly,  in  such  a  case,  there  is 
no  contract  at  all,  and  it  is  a  misuse  of  terms  to  speak  of  it  as  such. 
A  transaction  or  agreement  cannot  be  void  and  be  called  a  con- 
tract, so  it  is  more  accurate  to  say  that  the  transaction  or  agree- 
ment is  void. 

A  voidable  contract  is  not  destitute  of  legal  effect,  but  may  be 
valid  and  binding.  It  is  a  contract  that  is  capable  of  being  affirmed 
or  rejected  at  the  option  of  one  of  the  parties.  It  is  binding  if  he 
chooses  to  affirm  it,  and  is  of  no  effect  if  he  chooses  to  reject  it. 
The  other  party  has  no  say  in  the  matter.    Such  is  the  case,  as  we 


§§    7^-9)      VOID,  VOIDABLE,  AND   UNENFORCEABLE    AGREEMENTS  13 

shall  see,  with  contracts  into  which  one  of  the  parties  has  induced 
the  other  to  enter  by  means  of  fraud.  The  latter  may  repudiate  the 
contract,  or,  if  he  sees  fit,  he  may  waive  the  fraud,  and  hold  the 
former  to  his  bargain. 

It  will  seem,  at  first  thought,  that  certain  agreements  said  to  be 
void  are  not  so  in  fact.  For  instance,  as  we  shall  see,  an  agreement 
may  be  void  on  the  ground  of  mistake,  or,  in  a  few  cases,  because 
of  the  infancy  of  one  of  the  parties ;  but,  if  the  mistake  or  infancy 
is  not  pleaded  in  the  action  to  enforce  it,  the  parties  will  be  held 
bound.  Such  an  agreement,  however,  is  just  as  void  as  an  agree- 
ment to  do  something  which  the  law  forbids.  The  cause  of  nullity 
is  latent,  but  this  does  not  alter  the  character  of  the  transaction.  It 
is  void  if  the  defendant  chooses  to  prove  it  so.^® 

If  the  defendant  in  these  cases  may,  at  his  option,  avoid  the  con- 
tract, or  let  it  stand,  there  would  seem  to  be  a  certain  unreality  in 
the  distinction  between  void  and  voidable  agreements ;  but  this  is 
not  so  in  fact.  In  case  of  voidable  agreements  there  is  a  contract, 
though  it  is  marked  by  a  flaw ;  and  the  party  who  has  the  option 
may  affirm  it  in  spite  of  the  flaw.  Where,  however,  an  agreement  is 
void,  it  falls  to  the  ground  as  soon  as  its  nullity  becomes  apparent. 
It  is  incapable  of  affirmance.  Another  distinction  is  in  the  fact  that 
in  case  of  voidable  contracts  innocent  third  persons,  acting  in  good 
faith,  may  acquire  rights  thereunder,  and  thereby  cut  off  the  right 
to  avoid  it;  but  no  such  rights  can  be  acquired  where  the  transac- 
tion is  void.** 

A  contract  which  is  unenforceable  cannot  be  set  aside  at  the  op- 
tion of  one  of  the  parties  to  it.  The  obstacles  to  its  enforcement  do 
not  touch  the  existence  of  the  contract,  but  only  set  difficulties  in 
the  way  of  action  being  brought  or  proof  given.  The  contract  is 
valid,  but  because  of  these  obstacles  it  cannot  be  enforced.  Such  is 
a  contract,  as  we  shall  see,  which  fails  to  comply  with  some  of  the 
provisions  of  the  statute  of  frauds,  requiring  writing,  and  so  cannot 
be  proved ;  or  a  contract  which  has  become  barred  by  the  statute 
of  limitations.  The  defect  in  these  contracts  is  not  irremediable. 
In  the  first  it  may  be  remedied  by  supplying  the  writing,  and  in  the 
second  by  procuring  a  proper  acknowledgment  of  the  barred  debt; 
but  it  will  be  noticed  that  the  defect  can  be  remedied  only  with  the 
concurrence  of  the  party  to  be  made  liable. 

2»  Anson,  Cont  r4th  Kd.)  204.  "'J  Post,  p.  295. 


14  DEFINITION,  NATURE,  AND   REQUISITES    OF   CONTRACT  (Ch.  1 


ESSENTIALS  OF  CONTRACT 

Having  ascertained  the  particular  features  of  contract  as  a  juris- 
tic conception,  the  next  step  is  to  ascertain  how  contracts  are  made. 
A  part  of  the  definition  of  contract  being  that  it  is  an  agreement 
enforceable  at  law,  it  follows  that  we  must  analyze  the  elements  of 
a  contract  such  as  the  law  will  hold  to  be  binding  betweenthe  par- 
ties to  it. 

10.  As  there  must  be  an  agreement  directly  contemplating  and  re- 
sulting in  an  obligation,  and  the  agreement  must  be  en- 
forceable in  the  law,  therefore — 

(a)  T^ere  must  be  a  distinct  communication  by  the  parties  to 

one  another  of  their  intention,  or  an  offer  and  acceptance. 

(b)  The  agreement  must  possess  the  marks  which  the  law  re- 

quires in  order  that  it  may  affect  the  legal  relations  of  the 
parties,  and  be  an  act  in  the  law.    Therefore — 

(1)  It  must  be  in  the  form  required  by  law. 

(2)  There  must  be  a  consideration,  when  required  by  law. 

(c)  The  parties  must  be  capable  in  law  of  making  a  valid  con- 

tract. 

(d)  The  consent  expressed  in  offer  and  acceptance  must  be  gen- 

uine. 

(e)  The  objects  which  the  contract  proposes  to  effect  must  be 

legal." 

Where  all  of  these  elements  coexist,  a  valid  contract  is  the  result. 
If  any  one  of  them  is  absent,  the  agreement  is  in  some  cases  merely 
unenforceable ;  in  some  voidable  at  the  option  of  one  of  the  parties ; 
and  in  some  absolutely  void.  We  shall  now  take  up  in  turn  each  of 
these  elements  in  separate  chapters. 

31  Justice  V.  Lang,  42  N.  Y.  493.  1  Am.  Rep.  576.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  103;    Cent.  Dig.  §§  46&-476. 


11-13)  OFFER   AND   ACCEPTANCB  15 


CHAPTER  II 

OFFER  AND  ACCEPTANCB 

11-13.  In  General 

14-15.  Communication  by  Conduct— Implied   Contracts. 

16.  Communication  of  Offer. 

17.  Necessity  and  Effect  of  Acceptance. 
18-20.  Communication  of  Acceptance. 

21.  Character,    Mode,    Place,   and   Time   of   Acceptance. 

22-23.  Revocation  of  Offer. 

24.  Lapse  of  Offer. 

25.  Offers  to  the  Public  Generally. 

26.  Offer  as  Referring  to  Legal  Relations. 


IN  GENERAL 

11.  To  constitute  a  contract,  the  expression  of  common  intention 

must  generally,  if  not  always,  arise  from  an  offer  made  by 
one  party  to  another,  and  an  acceptance  by  the  latter,  with 
the  result  that  one  or  both  are  bound  by  a  promise. 

12.  The  offer  may  be — 

(a)  Of  a  promise,  or 

(b)  Of  an  act. 

13.  The  acceptance  may  be — 

(a)  Simple  assent ;  but  this  applies  to  contracts  under  seal  only. 

(b)  Giving  of  a  promise. 

(c)  Doing  of  an  act. 

In  practical  matters,  and  for  the  purpose  of  creating  obligations, 
every  expression  of  a  common  intention  arrived  at  by  two  or  more 
parties  is  ultimately  reducible  to  question  and  answer,  or  to  offer 
and  acceptance.^  Thus,  if  a  person  agrees  to  sell  an  article  to  an- 
other for  a  certain  price,  and  the  latter  agrees  to  buy  it,  we  can 
trace  the  process  to  the  moment  when  the  seller  says  in  words 

1  Anson,  Cont.  (4th  Ed.)  11;  Leake,  Cont.  12;  Thruston  v.  Thornton,  1  Cush. 
(Mass.)  91.  Pollock  objects  that  this  analysis  does  not  properly  apply  to  a 
case  in  which  the  consent  of  the  parties  is  declared  in  a  set  form,— as  where 
they  both  execute  a  deed  or  sign  a  written  agreement.  Pol.  Cont.  4.  But  he 
adds  that,  "notwithstanding  the  difliculties  that  arise  in  making  proposal 
and  acceptance  necessary  parts  of  the  general  conception  of  contract,  there 
is  no  doubt  that  in  practice  they  are  the  normal  and  most  Important  ele- 
ments." Id.  8.  See  "Contracts,"  Dec.  Diff.  (Key-No.)  §  16:  Cent.  Diu.  §5 
JiO-^6,  71-92.  ** 


16  OFFER   AND   ACCErXANCB  (Ch.  2 

or  by  conduct,  "Will  you  give  me  so  much  for  the  article?"  and 
the  buyer  replies,  "I  will ;"  or  when  the  buyer  says,  "Will  you  take 
so  much  for  the  article?"  and  the  seller  says,  "I  will."  There  is 
always  this  question  and  answer,  or  offer  and  acceptance,  though 
in  many  cases  it  is  not  in  so  many  words.  A  tradesman  displaying 
his  goods  says  in  act,  though  not  in  words,  "Will  you  buy  my 
go6ds  at  my  price?"  and  a  customer  taking  goods  with  the  trades- 
man's cognizance  virtually  says,  "I  will."  The  proprietor  of  a 
public  conveyance,  by  running  it  in  such  a  way  and  place  as  to  in- 
vite people  to  use  it,  virtually  says,  "Will  you  pay  me  the  fare  if 
I  carry  you  ?"  and  one  who  gets  into  the  conveyance  to  be  carried, 
by  his  conduct  says,  "I  will,"  as  plainly  as  if  he  were  to  use  the 
words.  And  so  all  contracts,  or  voluntary  obligations,  may  be  re- 
duced to  question  and  answer,  either  in  words,  or  by  conduct,  or 
both.  The  question  is  the  offer ;  the  answer  the  acceptance  of  the 
offer. 

A  written  contract,  the  terms  of  which  have  been  agreed  upon 
by  the  parties,  but  which  they  have  further  agreed  is  to  become 
binding  only  upon  its  execution  and  delivery,  is  an  apparent  ex- 
ce{)tion  to  the  above  rule  that  every  contract  originates  in  an  offer 
and  acceptance.  But  the  delivery  of  the  written  instrument  by  one 
party,  either  in  person  or  through  his  agent,  may  be  said  to  consti- 
tute an  offer,  and  its  receipt  and  approval  by  the  other  party  an 
acceptance. 

Forms  of  Offer  and  Acceptance 

(1)  A  contract  may  originate  in  the  offer  of  a  promise,  and  its  ac- 
ceptance by  simple  assent,  but  this  applies  only  to  contracts  under 
seal,  for,  as  will  presently  be  seen,  the  law  requires  a  consideration 
to  support  a  promise  not  under  seal,  and  mere  assent  is  not  enough. 
Thus,  where  one  person  promises  another  by  writing  under  seal 
that  he  will  do  a  certain  thing,  or  pay  a  certain  sum,  and  the  prom- 
isee assents  to  the  proposal,  both  are  bound,  and  there  is  a  con- 
tract.* 

(2)  As  already  shown,  the  presence  of  a  public  conveyance  on 
the  street  is  a  constant  offer  by  its  proprietor  to  carry  persons,  and 
when  a  person  steps  into  the  conveyance  he  accepts  the  offer,  and 
promises  to  pay  the  fare.    This    is  an  offer  of  an  act  for  a  promise. 

(3)  If  a  person  who  has  lost  property  offers  by  advertisement  a 
reward  to  any  person  who  shall  return  it,  he  offers  a  promise  for  an 
act,  and  when  a  person  returns  the  property  he  accepts  and  per- 
forms the  act,  and  the  promise  becomes  binding.  ^ 

2  As  to  offers  and  contracts  under  seal,  see  post,  PP-  C>-  et  seq. 


§§    11-13)  IN    GENERAL  17 

(4)  If  a  person  ofifers  another  to  pay  him  a  certain  sum  on  a 
future  day  if  the  latter  will  promise  to  perform  certain  services  for 
him  before  that  day,  or,  vice  versa,  he  offers  a  promise  for  a  prom- 
ise, and  where  the  person  to  whom  the  offer  is  made  accepts  it  by 
promising  to  perform  the  services  or  to  pay,  as  the  case  may  be, 
both  parties  are  bound,  the  one  to  do  the  work  and  the  other  to 
make  the  payment.    This  is  the  offer  of  a  promise  for  a  promise. 

A  contract  in  which  there  is  an  offer  of  a  promise  for  an  act  is 
sometimes  called  a  "unilateral"  contract,  because  there  is  a  sub- 
sisting obligation  on  the  part  of  only  one  party ;  and  it  is  distin- 
guished from  a  contract  consisting  of  an  offer  of  a  promise  for  a 
promise,  which  is  said  to  be  "bilateral"  because  imposing  an  exist- 
ing obligation  on  each  party. ^ 

Executed  and  Executory  Consideration 

It  will  be  noticed  that  cases  (2)  and  (3)  differ  from  (4)  in  an 
important  respect.  In  (2)  and  (3)  the  contract  is  formed  by  one 
party  doing  all  he  can  be  required  to  do  under  the  contract.  The 
contract  is  formed  by  performance  on  one  side,  and  it  is  this  per- 
formance which  makes  obligatory  the  promise  on  the  other.  The 
outstanding  obligation  is  all  on  one  side.  In  (4)  each  party  is 
bound  to  some  act  or  forbearance  in  the  future.  There  is  an  out- 
standing obligation  on  both  sides.  Where  the  benefit,  in  contem- 
plation of  which  the  promise  is  made,  is  done  at  the  same  time  that 
the  promise  acquires  a  binding  force, — where  it  is  the  doing  of  the 
act  that  concludes  the  contract, — then  the  act  so  done  is  called  an 
executed  or  present  consideration  for  the  promise.  Where  a  prom- 
ise is  given  for  a  promise,  each  forming  the  consideration  for  the 
other,  the  consideration  is  said  to  be  executory  or  future. 

•  Great  Northern  R.  Co.  r.  Witham,  9  Law  Rep.  (C.  C.  P.)  12,  19;  Busher 
V.  New  York  Life  Ins.  Co.,  72  N.  H.  551,  58  Atl.  41;  Nicholson  v.  Acme  Ce- 
ment Plaster  Co.,  145  Mo.  App.  523,  122  S.  W.  773;  2  111.  Law  Review,  463 
(Roscoe  Pound).  The  word  "unilateral"  is  also  sometimes  used  to  express 
the  idea  of  an  agreement  not  binding  because  lacking  in  mutuality  of  obliga- 
tion. For  criticism  of  this  use,  see  High  Wheel  Auto  Parts  Co.  v.  Journal 
Co.  of  Troy,  50  Ind.  App.  3110,  98  N.  B.  442.  See  "Contracts,"  Dec.  Dig.  (Eey- 
A'o.)  {  10;  Cent.  Dig.  §§  21-JtO. 
Clark  Cont.(3d  Ed.) — 2 


18  OFFER  AND   ACCEPTANCB  (Ch.  2 


COMMUNICATION  BY  CONDUCT— IMPLIED  CONTRACTS 

14.  An  offer  or  its  acceptance  may  be  made  by  conduct  as  well  as 

by  words. 

15.  Where  the  terms  of  a  contract  are  shown  by  the  acts  of  the  par- 

ties, the  contract  is  said  to  be  implied.  It  is,  however,  im- 
plied as  a  matter  of  iact.  There  is  an  agreement  in  fact, 
evidenced  by  acts. 

From  what  has  already  been  said  as  to  the  possible  forms  of  of- 
fer and  acceptance,  it  will  have  been  seen  that  conduct  may  take 
the  place  of  written  or  spoken  words  in  the  making  of  contracts.* 

If  a  person  asks  another  to  perform  a  service  for  him  for  com- 
pensation, the  latter  may  accept  the  offer  simply  by  performing 
the  service,  unless  a  particular  form  of  acceptance  is  prescribed  in 
the  offer.    His  acceptance  is  inferred  or  implied  from  his  conduct.^ 

Again,  if  a  person  allows  another  to  work  for  him  under  such 
circumstances  that  no  reasonable  man  would  suppose  that  the  latter 
means  to  do  the  work  for  nothing,  he  will  be  liable  to  pay  for  it. 
The  doing  of  the  work  is  an  offer ;  the  permission  to  do  it,  or  ac- 
quiescence in  its  being  done,  is  the  acceptance.  The  offer  and  ac- 
ceptance are  inferred  or  implied  as  a  matter  of  fact  from  the  cir- 
cumstances.® 

*  Morse  v.  Bellows,  7  N.  H.  549,  28  Am.  Dec.  372;  Hough wout  v.  Boisaubin, 
18  N.  J.  Eq.  315;  Smith  v.  Ingram,  90  Ala.  529,  8  South.  144;  Wetmore  v. 
Mell,  1  Ohio  St.  26,  59  Am.  Dec.  607 ;  Sturges  v.  Bobbins,  7  Mass.  301  ;  Train 
V.  Gold,  5  Pick.  (Mass.)  384;  New  York  &  N.  H.  R.  Co.  v.  Pixley,  19  Barb. 
(N.  Y.)  428;  Porter  v.  Everts'  Estate,  81  Vt.  517,  71  Atl.  722.  Taking  goods; 
Implied  promise  to  pay  for  them.  Stoudenmire  v.  Harper,  81  Ala.  242,  1 
South.  857.  Sending  goods  in  response  to  an  order  is  an  acceptance  of  the 
offer  to  buy  contained  in  the  order.  Crook  v.  Cowan,  64  N.  C.  743;  Briggs 
V.  Sizer,  30  N.  Y.  652;  Harvey  v.  Johnston,  6  C.  B.  295.  Retention  of  the 
order,  if  explained,  is  not  an  acceptance.  Briggs  v.  Sizer,  30  N.  Y.  652. 
Taking  possession  of  property  in  accordance  with  a  letter  offering  to  sell  it 
is  an  acceptance.  Dent  v.  Steamship  Co.,  49  N.  Y.  390.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §§  16,  18,  22;  Cent.  Dig.  §§  49-56,  71-92. 

s  See  Eeif  v.  Paige,  55  Wis.  503,  13  N.  W.  473,  42  Am.  Rep.  731 ;  Coston 
V.  Morris,  51  Hun,  ©43.  4  N.  Y.  Supp.  89.  See,  also,  post.  p.  20,  and  notes. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig.  §§  82-92. 

6  Paynter  v.  Williams,  1  Cromp.  &  M.  810 ;  Day  v.  Caton,  119  Mass.  513, 
20  Am.  Rep.  347;  Huck  v.  Flentye,  SO  111.  258;  De  Wolf  v.  City  of  Chicago, 
26  111.  444 ;  Hartupee  v.  City  of  Pittsburgh,  97  Pa.  107 ;  Thomas  v.  Coal  Co., 
i3  Mo.  App.  653;  Lockwood  v.  Robbins,  125  Ind.  398,  25  N.  E.  455;  Wojahn 
V.  National  Union  Bank  of  Oshkosh,  144  Wis.  646,  129  N.  W.  1068.  No  promise, 
however,  on  the  part  of  a  person  benefited  by  work,  can  be  implied  where 
the  work  was  done  under  a  special  contract  with  another  person.     Walker 


§§    14-15)      COMMUNICATION  BY  CONDUCT — IMPLIED  CONTBACTS  VJ 

So,  also,  if  a  person  sends  goods  to  another,  not  under  such  cir- 
cumstances as  reasonably  to  lead  the  latter  to  suppose  them  a  gift, 
and  the  latter  uses  or  consumes  them,  he  will  be  liable  on  an  im- 
plied promise  to  pay  what  the  goods  are  reasonably  worth.  The 
offer  is  made  by  sending  the  goods;  the  acceptance,  by  their  use  or 
consumption,  which  is  in  fact  a  promise  to  pay  their  price.''  In 
like  manner,  a  subscriber  to  a  newspaper  or  magazine  remains  lia- 
ble for  the  subscription  price  so  long  as  he  takes  or  receives  the 
publication  from  the  post  office,  even  though  he  has  directed  the 
publisher  to  discontinue  it.* 

Where  conduct  is  relied  on  as  constituting  acceptance,  it  must  be 
something  more  than  mere  silence;  it  must  be  silence  under  such 
circumstances  as  to  amount  to  acquiescence  or  assent." 

V.  Brown,  28  111.  378,  81  Am.  Dec.  287;  Massachusetts  General  Hospital  v. 
Fairbanks,  129  Mass.  78,  37  Am.  Rep.  303.  A  promise  cannot  be  implied 
vrhere  the  whole  matter  is  covered  by  an  express  contract.  See  Phelps  v. 
Sheldon,  13  Pick.  (Mass.)  50,  23  Am.  Dec.  659;  Waite  v.  Merrill,  4  Greenl.  (Me.) 
102.  16  Am.  Dec.  238;  Stockett  v.  Watkins'  Adm'rs,  2  Gill  &  J.  (Md.)  320,  20 
Am.  Dec.  438 ;  Wheelock  v.  Freeman,  13  Pick.  (Mass.)  165,  23  Am.  Dec.  674 ; 
King  V.  Woodruff,  23  Conn.  50,  60  Am.  Dec.  625;  Appleton  Waterworks  Co. 
V.  City  of  Appleton,  132  Wis.  563,  113  N.  W.  44.  A  mere  expectation  by  one 
party  to  be  paid  for  his  services  is  not  sufficient  to  constitute  a  contract,  if 
the  other  party  reasonably  supposes  them  to  be  gratuitous.  Harley  v.  United 
States,  198  U.  S.  229,  25  Sup.  Ct.  634,  49  L.  Ed.  1029.  See  "Contracts,"  Dec. 
Dig.  {Key-No.)  §  22;  Cent.  Dig,  §§  82-92. 

7  Hart  V.  Mills,  15  Mees.  &  W.  87;  Manor  v.  Pyne,  8  Bins;.  288;  Larkin  v. 
Lumber  Co.,  42  Mich.  296,  3  N.  W.  904;  Kinney  v.  Railroad  Co.,  82  Ala. 
368,  3  South.  113 ;  Indiana  Mfg.  Co.  v.  Hayes,  155  Pa.  160,  26  Atl.  6 ;  Empire 
Steam  Pump  Co.  v.  Inman,  59  Hun,  230,  12  N.  Y.  Supp.  948;  Rosenfield  v. 
Sweu.son,  45  Minn.  190,  47  N.  W.  718;  Hobbs  v.  Whip  Co.,  158  Mass.  194.  33 
N.  E.  495.  The  person  to  whom  the  goods  are  sent  must  in  some  way  deal 
with  them  as  his  own  in  order  that  an  acceptance  may  be  implied.  If  he 
does  not  choose  to  take  them,  he  is  not  bound  to  return  them.  Pol.  Cont.  11. 
Where  goods  are  ordered,  and  only  a  part  are  sent,  the  person  so  ordering 
need  not  accept  them.  If  he  does  so,  however,  he  impliedly  agrees  to  pay 
what  the  goods  are  reasonably  worth.  Chapman  v.  Dease,  34  Mich.  375;  Der- 
mott  V.  Jones,  23  How.  220,  16  L.  Ed.  442;  Star  Glass  Co.  v.  Morey,  108 
Mass.  570;  Goodwin  v.  Merrill,  13  Wis.  658;  Richards  v.  Shaw,  67  111.  222. 
But  see  Kein  v.  Tupper,  52  N.  Y.  550.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  22; 
Cent.  Dig,  §§  SD-J,3;  "Contracts,"  Cent.  Dig.  §§  71,  75. 

8  Weatherby  v.  Borham,  5  C.  &  P.  228 ;  Fogg  v.  Portsmouth  Atheneum,  44 
N.  H.  115,  82  Am.  Dec.  191;  Ward  v.  Powell,  3  Ilar.  (Del.)  379;  Austin  v. 
Burge,  150  Mo.  App.  280,  137  S.  W.  618.  But  no  contractual  relation  arises 
from  the  mere  receipt  by  one  of  a  publication  to  which  he  has  not  sub- 
scribed. See  cases  cited  supra.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§4  27  • 
Cent.  Dig.  §§  4-6,  121-132. 

»  Royal  Ins.  Co.  v.  Beatty,  119  Pa.  6,  12  Atl.  607,  4  Am.  St.  Rep.  622;  O'Neal 
V.  Kiiipita  (Tex.  Sup.)  10  S.  W.  1020.  See  "Contracts,"  Dec.  Dig.  (K&y-No.) 
I  22;  Cent.  Dig.  i§  82-<J2. 


20  OFFER   AND   ACCEPTANCB  (Ch.  2 

"Implied  Contracts" — The  Term  Explained 

Contracts  implied  from  the  conduct  of  the  parties  are  implied  as 
a  matter  of  fact,  and  not  as  a  matter  of  law.  There  is,  in  fact,  an 
agreement  between  the  parties,  though  it  is  shown  by  their  acts, 
and  not  by  express  words. ^°  If  a  man  says  to  another  in  words,  "I 
will  sell  you  this  article  for  the  market  price,"  and  the  latter,  taking 
it,  says  in  words,  "I  accept  your  oiifer,  and  will  pay  the  price,"  there 
is  an  express  contract,  evidenced  by  express  words.  If  a  man 
sends  another  goods  under  such  circumstances  as  to  show  that  he 
expects  payment,  and  the  latter  accepts  and  consumes  the  goods, 
there  is  an  implied  contract  that  he  will  pay  the  market  price,  ev- 
idenced by  the  conduct  of  the  parties  in  sending  the  goods  on  the 
one  side,  and  in  accepting  and  using  them  on  the  other.  Sending 
the  goods  is  an  offer  to  sell  them,  and  accepting  and  using  them  is 
an  acceptance  of  the  offer.  There  is  no  difference  in  the  two  con- 
tracts except  in  the  evidence  by  which  the  agreement  is  shown.^^ 
The  distinction  between  contracts  implied  from  the  conduct  of  the 
parties  and  so-called  "implied  contracts"  which  are  properly  "quasi 
contracts,"  has  been  explained.^'' 

Same — Relationship  of  the  Parties 

Where  one  person  renders  services  for  another,  or  supports  an- 
other, the  relationship  of  the  parties  is  of  great  weight  in  determin- 
ing their  intention.  If  the  relationship  is  that  of  parent  and  child, 
even  though  the  child  has  attained  his  or  her  majority,  there  is  a 
presumption  that  no  compensation  was  intended;^'  and  this  ap- 
plies not  only  where  the  relationship  of  parent  and  child  actually 
exists,  but  also  where  one  of  the  parties  stands  in  loco  parentis  to 
the  other.i*    In  some  states  the  presumption  that  the  services  were 

10  Pol.  Cont.  »-ll;  Leake,  Cont  11;  HERTZOG  v.  HERTZOG,  29  Pa.  465; 
Throckmorton  Gas.  Contracts,  5.  See  "Contracts,"  Dec.  Dig.  {Key-'So.)  §  4; 
Cent.  Dig.  §§  -^-6. 

11  Bixby  V.  Moor,  51  N.  H.  402;  Fordtran  v.  Stowers,  52  Tex.  Civ.  App. 
226,  113  S.  W.  631;  Wojahn  v.  National  Union  Bank  of  Oshkosh,  144  Wis. 
646,  129  N.  W.  1068.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  .J;  Cent.  Dig. 
§§  4-6. 

12  Ante,  p.  10. 

18  HERTZOG  V.  HERTZOG,  29  Pa,  465,  Throckmorton  Cas.  Contracts,  5; 
Young  V.  Herman,  97  N.  O.  280,  1  S.  E.  792;  Bantz  v.  Bantz,  52  Md.  693; 
Cowan  V.  Musgrave,  73  Iowa,  384,  35  N.  W.  496 ;  McGarvy  v.  Roods,  73  Iowa, 
363,  35  N.  W.  488 ;  Hudson  v.  Hudson,  90  Ga.  581,  16  S.  E.  .349 ;  In  re  Young's 
Estate,  148  Pa.  575,  24  Atl.  124 ;  Howe  v.  North,  69  Mich.  272,  37  N.  W.  213 ; 
Allen  V.  Allen,  60  Mich.  635,  27  N.  W.  702 ;  Grant  v.  Grant,  109  N.  C.  710,  14 
S.  E.  90.  See  "Executors  and  Administratoi-s,"  Dec.  Dig.  (Key-No.)  §  221; 
Cent.  Dig.  ^  901. 

1*  Dodson  V.  McAdams,  96  N.  C.  149,  2  S.  E.  453,  60  Am.  Rep.  408;  Ormsby 
V.  Rhoades,  59  Vt  505,  10  Atl.  722;  Starkie  v.  Perry,  71  Cal.  495,  12  Pac.  508; 


§§    14-15)      COMMUNICATION  BY  CONDUCT — IMPLIED  CONTBACTS  21 

gratuitous  arises  only  in  the  case  of  parent  and  child,  or  child  and 
person  standing  in  loco  parentis.^"  The  presumption  has  frequently 
been  declared  to  exist,  however,  where  the  parties  were  grandpar- 
ent and  grandchild,^®  or  were  brothers,^^  or  brother  and  sister.^* 
^And  the  rule  as  generally  applied  extends  to  all  cases  where  the 
parties  occupy  a  near  relationship,  or,  although  not  related  at  all,  or 
only  distantly,  are  m'embers  of  the  same'  family,  and  the  services 
consist  either  in  household  or  other  family  duties  by  one  party,  and 
support  and  maintenance  by  the  other. ^*  As  said  in  a  New  Jersey 
case,-"  "the  reason  of  this  exception  to  the  ordinary  rule  is  that 
the  household  family  relationship  is  presumed  to  abound  in  recip- 
rocal acts  of  kindness  and  good  will,  which  tend  to  the  mutual  com- 
fort and  convenience  of  the  members  of  the  family,  and  are  gratui- 
tously performed  ;  and  where  that  relationship  appears,  the  ordinary 
implication  of  a  promise  to  pay  for  services  does  not  arise,  because 
the  presumption  which  supports  such  implication  is  nullified  by 
the  presumption  that  between  the  members  of  a  household  services 
are  gratuitously  rendered."  Some  courts  have  refused  to  apply  the 
presumption  against  an  implied  contract  where  the  benefit  is 
wholly  on  one  side,  as  where  one  relative  supports  and  nurses  an- 
other who  performs  no  services  in  return.^^ 

Wyley  v.  Bull,  41  Kan.  206,  20  Pac.  855;  Appeal  of  Barhite,  126  Pa.  404,  17 
Atl.  617;  Harris  v.  Smith,  79  Mich.  54,  44  N.  W.  169,  6  L.  R.  A.  702.  See 
"Executors  and  Administrators,"  Dec.  Dig.  (Key-No.)  §  221;  Cent.  Dig.  §  901. 

15  In  re  Shubart's  Estate,  154  Pa.  230,  26  Atl.  202.  See  "Executors  and 
Administrators,"  Dec.  Dig.  (Eey-No.)  §  221;  Cent.  Dig.  §  901;  "Work  and 
Labor,"  Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig.  §§  liynr-22. 

10  Jackson's  Adm'r  v.  Jackson,  96  Va.  1G5,  31  S.  E.  78.  See  "Work  ami 
Labor,"   Dec.  Dig.   (Key-No.)   §   7;  Cent.  Dig.   §§  ll^r-22. 

17  Chapman  v.  Chapman,  87  111.  App.  427.  See  "Woik  and  Labor,"  Dec. 
Dig.  (Key -No.)  §  7;  Cent.  Dig.  §§  liy2-22. 

18  Disbrow  v.  Durand,  54  N.  J.  Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678; 
Fuller  V.  Fuller,  21  Ind.  App.  42,  51  N.  E.  373.  See  "Work  and  Labor,"  Dec. 
Dig.  (Key-No.)  §  7;  Cent.  Dig.  §§  llV2r22. 

19  Disbrow  v.  Durand,  54  N.  J.  Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678; 
Cone  V.  Cross,  72  Md.  102,  19  Atl.  391 ;  Curry  v.  Curry,  114  Pa.  307,  7  Atl.  61 ; 
Feiertag  v.  Feiertag,  73  Mich.  297,  41  N.  W.  414;  Patterson  v.  Collar,  31  111. 
App.  340;  Collar  v.  Patter^jon,  137  111.  403,  27  N.  E.  604;  Reeves'  Estate  v. 
Moore,  4  Ind.  App.  492,  31  N.  E.  44 ;  Gerz  v.  Weber,  151  Pa.  396,  25  Atl.  82. 

Where  a  woman  married  a  man  .and  lived  with  him  till  his  death,  but  after- 
wards learned  that  he  had  a  wife  living,  held  that  she  could  not  recover  in 
*n  action  of  contract  against  his  administrator  for  her  services  In  keeping 
house.  CooiJer  v.  Cooper,  147  .Mass.  370,  17  N.  E.  892,  9  Am.  St  Rep.  721. 
Bee  "Work  and  Labor,"  Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig.  §§  liyj-22. 

20  Disbrow  V.  Durand,  ante,  note  19.  See  "Executors  and  Administrators," 
Dec.  Dig.  (Key-No.)  U  20(i,  221 ;  Cent.  Dig.  g§  1.33,  001. 

»i  Mark's  Adm'r  v.   Boardman   (Ky.)  89  S.   W.  481,  1   L.    U.   A.   (N.   S.)  819 


22  OFFER  AND  ACCEPTANCE  (Cll.  2 

In  all  cases  the  presumption  may  be  overcome  by  evidence  of  an 
agreement  for  compensation.^^  And,  as  said  in  an  Indiana  Case,^^ 
a  contract  will  be  implied,  notwithstanding  the  relationship,  where 
there  is  hope  of  compensation  on  one  side  and  expectation  to  award 
it  on  the  other. 

COMMUNICATION  OF  OFFER 

16.  An  offer  is  made  when  it  is  communicated  to  the  offeree. 

It  is  plain  that  without  communication  of  the  offer  there  can  be 
no  consensus,  and  therefore  no  contract. 

Thus,  in  the  case  of  an  offer  of  a  promise  for  an  act,  if  the  of- 
feree does  the  act  in  ignorance  of  the  offer,  he  is  not  entitled  to  the 
benefit  of  the  promise.  It  is  for  this  reason  that  a  person  who  does 
an  act  for  which  a  reward  is  offered,  in  ignorance  of  the  offer,  can- 
not claim  the  reward.^* 

Again,  if  a  person  does  work  for  another  under  such  circum- 
stances that  it  could  not  reasonably  be  supposed  that  he  meant  to 
work  for  nothing,  the  doing  of  the  work  is  an  offer,  and  acquies- 
cence in  its  doing  may  be  an  acceptance.  But  if  the  offer  is  not 
communicated  to  the  person  to  whom  it  is  intended  to  be  made, 
there  can  be  no  acquiescence. 

Thus,  where  a  person  who  had  been  engaged  to  command  a  ship 
threw  up  his  command  during  the  voyage,  but  helped  to  work  the 

See  "Work  and  Labor,"  Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig.  §§  11^^22;  "Con- 
tracts;' Cent.  Dig.  §  130. 

22  As  to  the  sufficiency  of  the  evidence  to  show  that  there  was  a  contract, 
see  Pritchard  v.  Pritchard,  69  Wis.  373,  34  N.  W.  506;  McMillan  v.  Page,  71 
Wis.  655,  38  N.  W.  173;  Shane  v.  Smith,  37  Kan.  55,  14  Pac.  477;  Petty  v. 
Young,  43  N.  J.  Eq.  654,  12  Atl.  392;  Appeal  of  Lindsey  (Pa.)  15  Atl.  4.34; 
Doremus  v.  Lott,  49  Hun,  284,  1  N.  Y.  Supp.  793 ;  Hill  v.  Hill,  121  Ind.  255, 

23  N.  E.  87;  Hogg  v,  Laster,  56  Ark.  382,  19  S.  W.  975;  Henzler's  Estate 
V.  Bossard,  6  Ind.  App.  701,  33  N.  E.  217;  Zimmerman  v.  Zimmerman,  129 
Pa.  229,  18  Atl.  129,  15  Am.  St.  Rep.  720;  Havens  v.  Havens,  50  Hun,  60.j, 
3  N.  Y.  Supp.  219;  Spitzmiller  v.  Fisher,  77  Iowa,  289,  42  N.  W.  197;  Ellis 
V.  Gary,  74  Wis.  176,  42  N,  W.  252,  4  L.  R.  A.  55,  17  Am.  St.  Rep.  125;  Davis 
V.  Gallagher,  55  Hun,  593,  9  N.  Y.  Supp.  11 ;  Kirkpatrick  v.  Gallagher,  34  S. 
C.  255,  13  S.  E.  450;  McCormick  v,  McCormick,"  1  Ind.  App.  594,  28  N.  E. 
122 ;  Story  v.  Story,  1  Ind.  App.  284,  27  N.  E.  573 ;  Stock  v.  Stoltz,  137  111.  349, 
27  N.  E.  604;  Wayman  v.  Wayman  (Ky.)  22  S.  W.  557;  O'Kelly  v.  Faulkner,. 
92  Ga.  521,  17  S.  E.  847.  See  ''Executors  and  Administrators"  Dec.  Dig. 
{Key-No.)  §  221;  Cent.  Dig.  §§  1858-1ST6;  "Work  and  Labor,"  Dec.  Dig.  {Key- 
No.)  §  28;  Cent.  Dig.  §§  17,  55. 

23  Huffman  v.  Wyrick,  5  Ind.  App.  183,  31  N.  E.  823.  See  "Work  and  La- 
bor." Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig.  §§  1^/^-22;  "Contracts,"  Cent.  Dig. 
§  ISO.  2*  Post,  p.  49. 


§    16)  COMMUNICATION   OF   OFFER  2^ 

vessel  home,  and  then  claimed  compensation  for  such  services,  it 
was  held  that  he  could  not  recover.^'  Evidence  "of  a  recognition 
or  acceptance  of  services,"  it  was  said,  "may  be  sufficient  to  show 
an  implied  contract  to  pay  for  them,  if  at  the  time  the  defendant 
had  power  to  accept  or  refuse  the  services ;"  but  in  this  case  the 
defendant  never  had  such  an  option,  and  repudiated  the  services 
when  he  became  aware  of  them.  The  offer,  not  having  been  com- 
municated to  the  owner  of  the  vessel,  did  not  admit  of  acceptance, 
and  could  give  no  rights  against  him.  As  said  in  the  case  men- 
tioned :  "Suppose  I  clean  your  property  without  you  knowledge, 
have  I  then  a  claim  on  you  for  payment?  How  can  you  help  it? 
One  cleans  another's  shoes ;  what  can  the  other  do  but  put  them 
on?    Is  that  evidence  of  a  contract  to  pay  for  the  cleaning?  " 

Terms  of  Offer  Partly  Uncommunicated 

If  an  offer  contains  on  its  face  the  terms  of  a  complete  contract, 
the  acceptor  will  not  be  bound  by  any  other  terms  intended  to  be 
included,  unless  he  knew  those  terms,  or  had  their  existence 
brought  to  his  knowledge,  and  was  capable  of  informing  himself 
of  their  nature.^®  Illustrations  of  this  frequently  arise  in  the  case 
of  contracts  of  carriage  or  bailment  with  a  railroad  company  or 
warehouseman,  evidenced  by  a  ticket  or  other  document  contain- 
ing terms  modifying  the  liability  of  the  company  or  warehouse- 
man as  carrier  or  bailee,  though,  of  course,  they  may  arise  in  the 
case  of  other  contracts. 

The  law  on  this  point  was  thus  s'tated  in  an  English  case:  "If 
the  person  receiving  the  ticket  did  not  see  or  know  that  there  was 
any  writing  on  the  ticket,  he  is  not  bound  by  the  conditions;  if  he 
knew  there  was  writing,  and  knew  or  believed  that  the  writing 
contained  conditions,  then  he  is  bound  by  the  conditions;    if  he 

2  8  Taylor  v.  Laird,  25  L.  J.  Exch.  329.  And  see  Bartholomew  v.  Jack- 
son, 20  Johns,  (N.  Y.)  28,  11  Am.  Dec.  237,  In  which  it  was  held  that  a  per- 
son who  removed  another's  property  without  the  latter's  knowledge,  to  pre- 
vent its  destruction  by  fire,  could  not  recover  for  his  services,  because  no  offer 
was  ever  communicated.  See,  also,  Thornton  v.  Village  of  Sturgis,  38  Midi. 
639;  Nagle  v.  McMurray,  84  Cal.  539,  24  Pac.  107;  Burrows  v.  Ward,  15  R. 
I.  340,  5  Atl.  500;  Brennan  v.  Chapin  (Com.  PI.)  19  N.  Y.  Supp.  237;  Mann 
T.  Farnum,  17  Colo.  427,  30  Pac.  332.  See  "Contracts,"  Dec.  Dig.  {Ecy-No.) 
i  18;  Cent.  Dig.  §§  1,9-56. 

28  In  order  that  a  prospectus  of  a  proposed  publication  may  become  a  part 
of  the  contract  of  a  sub.scriber  for  the  work  to  be  published,  so  that  he  may 
take  advantage  of  statements  contained  therein,  it  must  appear  that  tlie 
contents  of  the  prospectus  were  communicated  to  him,  so  that  he  may  be 
supposed  to  have  been  Influenced  thereby.  Tichnor  v.  Hart,  52  Minn.  407,  54 
N.  W.  309.  .S'ee  "Contracts,"  Deo.  Dig.  (Key-No.)  §§  IS,  203;  Cetit.  Dig.  §§ 
49-50,  913-915. 


24  OFFER  AND   ACCErTAN'CB  (Ch.  2 

knew  there  was  writing  on  the  ticket,  but  did  not  know  or  believe 
that  the  writing  contained  conditions,  nevertheless  he  would  be 
bound,  if  the  delivery  to  him  of  the  ticket  in  such  a  manner  that 
he  could  see  that  there  was  writing  on  it,  was,  in  the  opinion 
of  the  jury,  reasonable  notice  that  the  writing  contained  condi- 
tions." "  In  all  cases,  however,  the  question  is  the  same,  name- 
ly, have  the  terms  of  the  offer  been  fully  communicated  to  the 
acceptor?  And  the  tendency  of  judicial  decision  is  towards  a 
general  rule  that,  if  a  man  accepts  a  document  which  purports 
to  contain  the  terms  of  an  offer,  he  is  bound  by  all  the  terms, 
though  he  may  not  choose  to  inform  himself  of  their  tenor,  or 
even  of  their  existence.'*' 

Same — Offer  Under  Seal 

It  has  been  said  that  an  offer  under  seal  constitutes  an  excep- 
tion to  the  inoperative  character  of  an  uncommunicated  offer, 
at  least  to  the  extent  that  the  party  making  an  offer  in  this 
form  is  bound  to  leave  it  open  until  the  other  party  has  had  an 
opportunity  to  accept  or  reject  it.  This  doctrine,  however,  is 
based  on  a  mistaken  conception  of  the  nature  and  effect  of  a 
deed  or  instrument  under  seal.  And  an  offer  under  seal  is  no 
exception   to    the   general   rule   that   an   offer   is   wholly   without 

2T  Parker  v.  Railway  Co.,  2  C.  P.  Div.  423.  See,  also.  Richardson  v.  Roun- 
tree  [1894]  App.  Cas.  217;  The  Majestic,  166  U.  S.  375,  17  Sup.  Ct.  597,  41 
L.  Ed.  1039.  Where  a  ticket  by  steamer  from  Dublin  to  Whitehaven  contained 
on  its  face  only  the  words,  "Dublin  to  Whitehaven,"  it  was  held  that  the  pur- 
chaser was  not  bound  by  conditions  on  the  back  of  the  ticket,  which  he  had 
not  seen,  since  the  ticket  was  a  complete  contract  on  its  face.  Henderson 
V.  Stevenson,  L.  R.  2  H.  L.  470. 

On  the  other  hand,  where  a  ticket  had  vrritten  on  its  face  the  words,  "Sub- 
ject to  the  conditions  on  the  other  side,"  and  the  person  to  whom  it  was 
issued  admitted  knowledge  that  there  were  conditions,  but  said  be  had  not 
read  them,  the  conditions  contained  on  the  back  were  held  binding  notwith- 
standing they  were  not  read.     Harris  v.  Railway  Co.,  1  Q.  B.  Div.  515. 

In  another  case  the  ticket  contained  on  its  face  the  words,  "See  back,"  and 
the  person  to  whom  it  was  given  admitted  knowledge  of  writing  on  the 
ticket,  but  denied  all  knowledge  that  the  writing  contained  conditions.  It 
was  held  that  he  was  bound  by  the  conditions  if  the  jury  were  of  opinion 
that  the  ticket  amounted  to  a  reasonable  notice  of  their  existence.  Parker 
v.  Southeastern  Ry.  Co.,  supra.  See  "Carriers,"  Dec.  Dig.  {Key-No.)  §§  62, 
153;  Cent.  Dig.  §§  195-206^.,  6811-690. 

28  Burke  v.  Railway  Co.,  5  C.  P.  Div.  1;  Watkins  v.  Rymill,  10  Q.  B.  Div. 
178;  ilcClure  v.  Railroad  Co.,  34  Md.  532,  6  Am.  Rep.  345;  Johnson  v.  Same, 
63  Md.  106;  Boylan  v.  Railroad  Co.,  132  U.  S.  146,  10  Sup.  Ct.  50,  33  L. 
Ed.  290;  Durgin  t.  Express  Co.,  66  N.  H.  277,  20  Atl.  328,  9  L.  R.  A.  453; 
Davis  v.  Railroad  Co.,  66  Vt.  290,  29  Atl.  313,  44  Am.  St  Rep.  852 ;  Fonseca 
V.  Steamship  Co.,  153  Mass.  553,  27  N.  E.  665,  12  L.  R.  A.  340,  25  Am.  St. 
Rep.  660;  Schaller  r.  Railway  Co.,  97  Wis.  31.  71  N.  W.  1042.     But  some- 


§    17)  NECESSITY   AND   EFFECT  OF    ACCEPTANCE  25 

effect  until  communicated.  There  can  be  no  contract  without 
mutual  assent ;  and  how  may  a  party  assent  to  that  which  has 
never  been  communicated  to  him?  ^® 


NECESSITY  AND  EFFECT  OF  ACCEPTANCE 

17.  An  offer  before  it  will  become  a  binding  promise  must  be  ac- 
cepted. 

It  is  the  universal  rule  that  an  offer  must  be  accepted  before  it 
will  become  a  binding  promise,  and  result  in  a  contract.^"  This 
rule  springs  from  the  very  nature  of  contract  as  involving  the 
clement  of  agreement.^^  An  unaccepted  offer,  therefore,  cannot 
create  any  rights,  or  bind  the  party  making  it  to  the  party  to 
whom  it  is  made.     A  fortiori,  it  cannot  bind  the  party  to  whom 

courts  hold  that,  where  a  contract  limiting  the  common-law  liability  of  the 
carrier  is  contained  in  a  bill  of  lading,  the  burden  is  on  the  carrier  to  show 
that  the  limitations  were  assented  to.  See  Michigan  Cent.  R.  v.  Manufacturing 
Co.,  16  Wall.  318,  21  L.  Ed.  297;  9  Cyc.  Law  &  Proc.  263.  One  who  accepta 
a  document  reasonably  purporting  to  be  a  mere  check  or  voucher,  and  not 
a  contract,  without  knowledge  of  stipulations  contained  in  it,  does  not  assent 
to  euch  stipulations.  Malone  v.  Railroad  Corp.,  12  Gray  (Mass.)  388,  74  Am. 
Dec.  598.  See  Fonseca  v.  Steamship  Co.,  supra.  See  "Carriers,"  Dec.  Dig. 
(Key-No.)  §§  62,  153;  Cent.  Dig.  §§  195-206^/2,  687-690. 

2  9  As  to  whether  an  offer  under  seal,  which  has  been  communicated,  may 
be  revoked,  see  post,  40. 

so  PRE  SCOTT  V.  JONES,  69  N.  H.  305,  41  Atl.  352,  Throckmorton  Cas.  Con- 
tracts, 10  [cit  Clark  on  Contracts] ;  Payne  v.  Cave,  3  Term  R.  148 ;  Tuttle 
T.  Love,  7  Johns.  (N.  Y.)  470 ;  Tucker  v.  Woods,  12  Johns.  (N.  Y.)  190,  7  Am. 
Dec.  305 ;  First  Nat.  Bank  v.  Hall,  101  U.  S.  43,  25  L.  Ed.  822 ;  McKinley  v. 
Watkins,  13  111.  140;  Bruce  v.  Bi.shop,  43  Vt.  161;  Weiden  v.  Woodruff,  38 
Mich.  1.30;  Brown  v.  Rice,  29  Mo.  322;  Belfast  &  M.  L.  R.  Co.  v.  Inhabitants 
of  Unity,  62  Me.  148;  Bower  v.  Blessing,  8  Serg.  &  R.  (Pa.)  243;  King  v. 
Warfield,  67  Md.  246,  9  Atl.  539,  1  Am.  St.  Rep.  384 ;  Missouri  Pac.  Ry.  Co.  v. 
Railway  Co.  (C.  C.)  31  Fed.  864;  Etheredge  v.  Barkley,  25  Fla.  814,  6  South. 
861;  Hodges  v.  Sublett,  91  Ala.  588,  8  South.  800;  Graff  v.  Buchanan,  46 
Minn.  254,  48  N.  W.  915;  Bronson  v.  Herbert,  95  Mich.  478,  55  N.  W.  359; 
McCormick  Harvesting  Mach.  Co.  v.  Richardson,  89  Iowa,  525,  56  N.  W.  682 ; 
State  V.  Board  of  Public  Service  of  Columbus,  81  Ohio  St.  218,  90  N.  E.  389; 
Wm.  J.  Lemp  Brewing  Co.  v.  Secor,  21  Okl.  537,  96  Pac.  636.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §§  7^-92. 

81  Ante,  p.  3.  Suppose  A.  nuikes  an  offer  by  letter  to  I'.,  to  soil  him  cer- 
tain goods  at  a  certain  price,  and  P..,  not  knowing  of  the  offer,  makes  an 
offer  by  letter  to  A.  to  buy  the  goods  at  that  price,  and  the  letters  cross  each 
otber.  This  is  not  sufficient  to  constitute  a  contract,  for  there  is  no  acceptance 
by  either  of  the  other's  offer,  though  it  may  be  said  that  the  minda  of  the 
parties  are  ad  Idem.  See  Tinn  v.  Hoffman,  29  L.  T.  (X.  S.)  271.  See  "Con- 
tracts,"   Dec.    Dig.    (Key-No.)    |    16;    Vent.    Dig.    §|    71-92. 


26  OFFER  AND   ACCEPTANCE  (Ch.  2 

it  is  made.^''  "A  contract,"  it  has  been  said  by  Pothier,  "includes 
a  concurrence  of  intention  in  two  parties,  one  of  whom  promises 
something  to  the  other,  who,  on  his  part,  accepts  such  promise. 
A  pollicitation  is  a  promise  not  yet  accepted  by  the  person  to 
whom  it  is  made.  Pollicitatio  est  solius  offerentis  promissum. 
A  pollicitation,  according  to  the  rules  of  mere  natural  law,  does 
not  produce  what  can  be  properly  called  an  obligation ;  and  the 
person  who  has  made  the  promise  may  retract  it  any  time  before 
it  is  accepted;  for  there  cannot  be  any  obligation  without  a 
right  being  acquired  by  the  person  in  whose  favor  it  is  contracted 
against  the  party  bound.  Now,  as  I  cannot,  by  the  mere  act  of 
my  own  mind,  transfer  to  another  a  right  in  my  goods,  without 
an  intention  on  his  part  to  accept  them,  neither  can  I  by  my 
promise  confer  a  right  against  my  person,  until  the  person  to 
whom  the  promise  is  made  has,  by  his  acceptance  of  it,  con- 
curred in  the  intention  of  acquiring  such  right."  ^' 

An  offer,  as  we  shall  presently  see,  can  be  revoked  at  any  time 
before  acceptance.  Acceptance,  whether  by  words  or  by  con- 
duct, supplies  the  element  of  agreement,  which  binds  the  party 
making  it  to  a  fulfillment  of  its  terms.^*  It  changes  the  char- 
acter of  the  offer,  and  makes  it  a  promise. ^° 

3  2  Stensgaard  v.  Smith,  43  Minn.  11,  44  N.  W.  6G9,  19  Am.  St.  Rep.  205; 
Melchers  v.  Springs,  33  S.  C.  279,  11  S.  E.  7SS.  See  ''Contracts;'  Dec.  Dig. 
(Kev-yo.)  §  16;  Cent.  Dig.  §§  71-92. 

S3  Poth.  Obi.  p.  1,  c.  1,  §  1,  art.  2. 

3  4  fiarris'  Case,  L.  R.  7  Ch.  App.  587;  Thruston  v.  Thornton,  1  Cush. 
(Mass.)  91 ;  Bowen  v.  Tipton,  64  Md.  275,  289,  1  Atl.  861 ;  Equitable  Endow- 
ment Ass'n  V.  Fisher,  71  Md.  430,  18  Atl.  808;  Fried  v.  Insurance  Co.,  50  N. 
Y.  243 ;  White  v.  Baxter,  71  N.  Y.  2.54 ;  Hamilton  v.  Insurance  Co.,  5  Pa.  339 ; 
Wheeler  v.  Railroad  Co.,  115  U.  S.  29,  5  Sup.  Ct.  lOGl,  1160,  29  L.  Ed.  341 ; 
Hawkinson  v.  Harmon,  69  Wis.  551,  35  N.  W.  28;  Wilcox  v.  Cline,  70  Mich. 
517,  38  N.  W.  555;  Merchant  v.  O'Rourke,  111  Iowa,  351,  82  N.  W.  759.  A 
bid  at  an  auction  sale  is  accepted  when  the  hammer  is  struck  down,  and 
the  contract  is  then  complete.  Payne  v.  Cave,  3  Term  R.  .148;  Blossom  v. 
Railway  Co.,  3  Wall.  196,  18  L.  Ed.  43 ;  Ives  v.  Tregent,  29  Mich.  390.  Where 
an  offer  is  made  containing  conditions,  an  acceptance  without  qualification 
is  an  acceptance  of  the  conditions,  and  makes  a  binding  contract.  La\^■renc•e 
T.  Railway  Co.,  84  Wis.  427,  54  N.  W.  797.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  22/ Cent.  Dig.  §§  82-92,  10^-108. 

3  5  See  Gartner  v.  Hand,  86  Ga.  558,  12  S.  E.  878.  See  "Contracts,"  Dec. 
Dig.  (Key-^o.)  §  22;  Cent.  Dig.  §§  82-92,  10^-108. 


§§    18-20)  COMMUNICATION    OF   ACCEPTANCE  27 


COMMUNICATION  OF  ACCEPTANCE 

18.  Where  the  offer  contemplates  the  performance  of  or  forbear- 

ance from  an  act  as  the  consideration  of  the  promise  of 
the  offeror,  the  performance  or  forbearance  is  an  accept- 
ance, unless  the  offeror  expressly  or  impliedly  prescribes 
that  the  acceptance  must  be  communicated. 

19.  Where  .the  offer  contemplates  a  promise  as  the  consideration 

of  the  promise  of  the  offeror,  communication  of  the  accept- 
ance is  essential,  unless  the  offer  contemplates  that  the 
performance  of  some  overt  act  manifesting  an  intention  to 
accept  shall  be  an  acceptance,  in  which  case  performance 
of  the  act  is  an  acceptance. 

20.  Where  the  offer  contemplates  the  dispatch  of  an  acceptance  by 

means  beyond  the  acceptor's  control,  as  by  post,  telegraph, 
or  the  offeror's  messenger,  an  acceptance  so  dispatched 
is  effective  from  the  time  of  dispatch,  unless  the  offeror 
makes  the  formation  of  the  contract  dependent  upon  actual 
communication  to  himself. 

It  is  frequently  said  that  it  is  essential  to  the  formation  of  a  con- 
tract that  the  acceptance  be  communicated,  but,  as  already  inti- 
mated, such  is  far  from  being  the  fact.  It  is,  indeed,  true  that 
acceptance   must  be   more   than   mere   mental    assent.^^      Where, 

36  WHITE  V.  CORLIES,  46  N.  Y.  467,  Throckmorton  Cas.  Contracts,  1; 
Felthouse  v.  Bindley,  11  C.  B.  (N.  S.)  869;  Hebb's  Case,  L.  R.  4  Eq.  9;  Brogden 
V.  Railway  Co.,  L.  R.  2  App.  Cas.  691 ;  Stitt  v,  Huidekoper,  17  Wall.  385,  21 
L.  Ed.  644;  Mactier's  Adm'rs  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262; 
Van  Valkenburg  v,  Rogers,  18  Mich.  ISO;  Strasburg  R.  Co.  v.  Echteruacht, 
21  Pa.  220,  60  Am.  Dec.  49;  Ueberroth  v.  Riegel,  71  Pa.  280;  Beckwith  v. 
Cheever,  21  N.  H.  41 ;  Trounstine  v.  Sellers,  35  Kan.  447,  11  Pac.  441 ;  Oilman 
V,  Kibler,  5  Humph.  (Tenn.)  19;  Stuart  v.  Railroad  Co.,  32  Grat.  (Va.)  146; 
Johnson  v.  Jacobs,  42  Minn.  168,  44  N.  W.  6;  Cozart  v.  Herudon,  114  N.  C. 
252,  19  S.  E.  158. 

In  Lancaster  v.  Elliott,  28  Mo.  App.  86,  it  was  held  that  a  proposal  by  de- 
fendant to  relinquish  certain  rights  against  plaintiff  was  not  accepted  by 
writing  on  the  proposal  the  word  "Accepted,"  and  depositing  in  liank  a  sum 
of  money  to  be  applied  as  required  by  the  proposal,  wliere  both  the  proposal 
and  the  df^posit  remained  under  plaintiff's  control. 

Where  an  order  for  goods  is  given  to  an  agent  of  the  manufacturer,  a 
letter  from  the  latter  to  the  agent,  without  any  notice  to  the  person  who  gave 
the  order,  is  not  an  acceptance,  so  as  to  render  the  order  binding.  Ilarvey  v. 
Duffey,  99  Cal.  401,  33  Pac.  897.  And  so  an  application  for  an  Insurance 
policy,  given  to  an  a^^'ent  of  the  company  and  by  him  forwarded  to  the  com- 
pany, and  the  Issuance  and  transmission  of  the  policy  to  tlie  agent,  doe.s 
not  esUiblish  a  contract  of  Insurance  without  communication  of  acceptance 


28  OFFEE  AND   ACCEPTANCE  (Ch.  2 

for  instance,  a  person  by  letter  offered  to  buy  another's  horse  for 
a  certain  price,  adding,  "If  I  hear  no  more  about  him,  I  consider 
the  horse  is  mine  at"  that  price,  and  no  answer  was  returned,  it 
was  held  that  there  was  no  contract,  and  this,  though  it  appeared 
that  the  person  to  whom  the  offer  was  sent  had  made  up  his  mind 
to  accept,  and  had  stated  to  a  third  person  that  the  horse  was 
sold.^^  A  person  making  an  offer  may  indicate  some  overt  act 
the  performance  of  which  shall  be  a  sufficient  manifestation  of 
acceptance,  but  the  statement  to  a  third  person  that_  the  horse 
was  sold  was  not  such  an  act,  and  the  silent  assent  of  the  offeree 
was  not  an  acceptance. 

Offer  of  Promise  for  Act 

Whether  or  not  communication  of  the  acceptance  is  essential  to 
the  formation  of  a  contract  must  depend  upon  the  nature  and  terms 
of  the  offer;  that  is,  upon  whether  the  offeror  proposes  to  be  bound 
upon  the  performance  of  an  act  by  the  offeree,  or  upon  his  com- 
munication of  his  acceptance  of  the  offer.  "Where  a  person  in  an 
offer  made  by  himself  to  another  person  expressly  or  impliedly 
intimates  a  particular  mode  of  acceptance  as  sufficient  to  make 
the  bargain  binding,  it  is  only  necessary  for  the  other  person 
*  *  *  to  follow  the  indicated  mode  of  acceptance ;  and  if  the 
person  making  the  offer  expressly  or  impliedly  intimates  in  his 
offer  that  it  will  be  sufficient  to  act  on  the  proposal  without  com- 
municating acceptance  of  it  to  himself,  performance  of  the  con- 
sideration is  a  sufficient  acceptance  without  notification." "  If 
the  offer  contemplates  the  doing  or  forbearance  from  the  doing 
of  an  act  as  the  consideration  of  the  promise  of  the  offeror,  unless 
the  offer  prescribes  communication,  the  mere  performance  of  the 
consideration  completes  the  contract.^"  Thus,  if  a  person  orders 
goods  of  a  merchant,  who  ships  them  pursuant  to  the  order,  the 

to  the  applicant.  Busher  v.  New  York  life  Ins.  Co.,  72  N.  H.  551,  58  Atl.  41. 
Hee  ''Contracts;'  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig.  §§  82-92,  104-108. 

37  Felthouse  v.  Bindley,  supra.  See,  also,  to  the  same  effect,  PRESCOTT  v. 
JONES,  69  N.  H.  305,  41  Atl.  352,  Throckmorton  Cas.  Contracts,  10  [cit  Clark 
on  Contracts].  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig.  §§  82- 
92,  104-108. 

88  Carlill  V.  Smoke-Bail  Co.  (1893)  1  Q.  B.  256.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  %  22;  Cent.  Dig.  §§  82-92,  104-108. 

3  9  Brogden  v.  Railway  Co.,  L.  R.  2  App.  Cas.  691;  First  Nat.  Bank  v.  Wat- 
Mns,  154  Mass.  385,  28  N.  E.  275 ;  Lennox  v.  Murphy,  171  Mass.  370,  50  N. 
E.  644.  While  a  party  making  an  offer  may  specify  how  it  shall  be  accepted, 
in  order  to  complete  the  contract,  yet,  if  he  does  not  so  specify,  anything 
which  in  law  would  be  an  acceptance  Is  sufficient.  Mott  v.  Jackson,  172  Ala. 
448,  55  South.  52a  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig. 
§§  32-52,  104-108. 


§§    18-20)  COMMUNICATION    OF    ACCEPTANCE  29 

contract  of  sale  is  complete  upon  the  shipment;*"  and  if  a  per- 
son offers  a  reward  for  the  return  of  lost  articles,  or  for  infor- 
mation, the  contract  is  complete  upon  transmission  of  the  articles 
or  the  information  to  the  offeror.*^  So,  as  we  have  seen,  if  a 
person  asks  another  to  work  for  him,  unless  a  particular  form  of 
acceptance  is  prescribed,  the  latter  may  accept  the  offer  simply 
by  performing  the  service;*^  and  if  a  person  sends  goods  to 
another,  who  uses  them,  he  is  liable  to  pay  for  them.*^  Yet,  even 
where  the  offer  is  of  a  promise  for  an  act,  the  offeror  may,  of 
course,  make  communication  of  acceptance  a  condition  of  the  for- 
mation of  a  contract. 

Offer  to  Guaranty  Future  Advances 

An  apparent  exception  to  the  rule  that  performance  of  the  act 
without  notification  of  acceptance  completes  the  contract  is  found 
in  the  cases  which  hold  that  an  offer  to  guaranty  future  advances 
to  be  made  or  credit  to  be  extended  to  a  third  person,  and  the  like, 
does  not  ripen  into  a  contract  upon  the  making  of  the  advances 
or  extending  the  credit,  but  that  notice  of  acceptance  by  the 
guarantee  is  essential.**  These  cases  have  been  put  upon  the 
untenable  ground  that  the  acceptance  of  the  offeree  must  be 
signified  to  the  offeror  to  make  a  binding  contract,  and  also  upon 
the  ground  that  the  requirement  of  notice  is  reasonable,  as  en- 
abling the  guarantor  to  know  the  nature  and  extent  of  his  liability, 
to  guard  himself  against  losses  which  might  otherwise  be  unknown 
to  him,  and  to  avail  himself  of  appropriate  means  to  compel  the 
other  parties  to  discharge  him  from  future  liabilities.***  The  doc- 
trine is  recognized  as  an  exception  to  the  rule  governing  ordinary 
contracts  and  is  said  to  be  implied  in  contracts  of  guaranty  either 
by  reason  of  the  custom  of  merchants  or  by  the  inherent  nature 

40  Finch  v.  Mansfield,  97  Mass.  89;  Smith  v.  Edwards,  156  Mass.  221,  30 
N.  E.  1017;  Kelsea  v.  Manufacturing  Co.,  55  N.  J.  Law,  320,  26  Atl.  907,  22 
L.  R.  A.  415;  Boit  v,  Maybin,  52  Ala.  252;  Sarbecker  v.  State,  65  Wis,  171, 
26  N.  W.  541,  56  Am.  Rep.  624.  See  Brogden  v.  Railway  Co.,  2  App.  Cas,  66G. 
See  ''Contracts;'  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig.  §§  82-92,  10',-10S. 

<i  Post,  p.  47.  *2  Ante,  p.  18.  4s  Ante,  p.  19. 

**  Edmondston  v.  Drake,  5  Pet.  (U.  S.)  624,  8  L.  Ed.  251;  Adams,  Cunning- 
ham &  Co.  V.  Jones,  12  Pet.  207,  9  L.  Ed.  1058 ;  Davis  v.  Wells,  104  U.  S.  159, 
20  L.  Ed.  680 ;  Davis  Sewing  Machine  Co.  v.  Richards,  115  U.  S.  524,  6  Sup. 
Ct.  17.'},  29  L.  Ed.  480 ;  Acme  Mfg.  Co.  v.  Reed,  197  Pa.  359,  47  Atl.  205,  80 
Am.  St.  Rep.  832;  De  Cremer  v.  Anderson,  113  Mich.  578,  71  N.  W.  1090; 
Ccrman  Sav.  Bank  v.  Roofing  Co.,  112  Iowa,  184,  83  N.  W.  960,  51  L.  R.  A. 
758.  84  Am.  St.  Rf<p.  .335  (full  citation  of  cases).  Bee  "Guaranty;'  Deo.  Dig. 
(Kry-yo.)  §§  (J,  7;   Coit.  Dig.  §S  S,  9. 

*i  Davi.s  V.  Wells,  supra.  See  "Ouaranty;'  Dec.  Dig.  (Key-No.)  §§  6,  7; 
Cent.  Dig.  §§  8,  if. 


30  OFFER  AND   ACCEPTANCE!  (Ch.  2 

of  the  transaction.*'  Even  where  apph'ed,  however,  it  is  subject 
to  certain  Hmitations.*^  And  it  is  wholly  rejected  in  England  ** 
and  in  certain  jurisdictions  in  this  country,**  in  which  it  is  held 
that  performance  of  the  act,  such  as  an  advance  of  money,  which 
was  to  constitute  the  consideration  for  the  promise,  is  a  sufficient 
acceptance  of  the  offer.'*" 

Offer  of  Promise  for  a  Promise 

On  the  other  hand,  where  the  offer  contemplates  a  promise  as 
the  consideration  of  the  promise  of  the  offeror,  it  is  obvious  that 
words  or  conduct  upon  the  part  of  the  offeree  indicating  to  the 
former  an  agreement  to  be  bound  is  essential,  or  at  least  that  the 
offeree  must  indicate  his  intention  to  be  bound  by  some  overt  act, 
not  necessarily  an  act  brought  to  the  knowledge  of  the  offeror, 
but  an  act  which,  from  the  nature  and  terms  of  the  offer,  must 
have  been  contemplated  by  the  offeror  as  an  acceptance.  Thus, 
where  the  defendants  wrote  to  the  plaintiff,  who  had  furnished 
an  estimate  for  fitting  up  their  offices,  "Upon  an  agreement  to 
finish  the  fitting  up  *  *  *  in  two  weeks  from  date,  you  can 
begin  at  once,"  but  countermanded  the  offer  after  the  plaintiff 
had  bought  lumber  and  begun  work  thereon,  it  was  held  error 
to  charge  the  jury  that  the  plaintiff  need  not  indicate  to  the 
defendants  his  acceptance  of  their  oft'er  and  that  the  purchase 
of   the    stuff    and   working   on    it   after   receiving   the    note    made 

46  Bishop  V.  Eaton,  161  Mass.  496,  37  N.  E.  6G5,  42  Am.  St.  Rep.  437.  See, 
also,  Lennox  v.  Murphy,  171  Mass.  370,  50  N.  E.  644.  See  "Guaranty,"  Dec. 
Dig.  (Kei/-No.)  §§  6,  7;  Cent.  Dig.  §§  8,  9. 

47  Davis  V.  Wells,  ante.  See  "Guaranty,"  Dec.  Dig.  (Key-No.)  §§  6,  7;  Cent. 
Dig.  §§  8,  9. 

4  8  15  Halsbury's  Laws  of  Eng.  449.  And  see  Pope  v.  Andrews,  9  Car.  & 
P.  564 ;  Morrell  v.  Cowan,  7  Ch.  D.  151.  See  "Guaranty,"  Dec.  Dig.  (Key-No.) 
§§  6,  7;  Cent.  Dig.  §§  8,  9. 

49  Wilcox  V.  Draper,  12  Neb.  138,  10  N.  W.  579,  41  Am,  Rep.  763;  Lininger 
&  Metealf  Co.  v.  Wheat,  49  Neb.  567,  68  N.  W.  941;  Farmers'  &  Mechanics' 
Bank  v.  Kercheval,  2  Mich.  504;  Crittenden  v.  Fiske,  46  Mich.  70,  8  N.  W. 
714,  41  Am.  Rep.  146;  Powers  v.  Bumcratz,  12  Ohio  St.  273;  (cf.  Wise  v. 
Miller,  45  Ohio  St.  388,  14  N.  E.  218);  Douglass  v.  Rowland,  24  Wend.  (N. 
Y.)  35;  Union  Bank  v.  Coster's  Es'rs,  3  N.  Y.  203,  53  Am.  Dec.  280;  Caton 
V.  Shaw,  2  Har.  &  G.  (Md.)  13;  Bright  v.  McKnight,  1  Sneed  (Teun.)  158; 
2  Am.  Lead.  Cas.  106  et  seq.  See,  also,  Manry  v.  Waxelbaum  Co.,  108  Ga. 
14,  33  S.  E,  701.  See  "Guaranty,"  Dec.  Dig.  (Key-No.)  §§  6,  7;  Cent.  Dig.  §§ 
8,  9. 

5  0  For  full  discussion,  see  5  Col.  K  Rev.  215,  article  by  W.  P.  Rogers,  in 
which  it  is  said:  "An  examination  of  the  cases  below  convinces  one  that  the 
rule  requiring  notice  when  the  debt  is  future,  as  announced  by  the  Supreme 
Court  of  the  United  States,  is  losing  its  hold,  at  least  in  the  states  from  which 
these  cases  are  cited" — citing  cases  from  Ohio,  New  York,  Iowa,  Virginia, 
Indiana,  Kansas,  Michigan,  and  New  Hampshire. 


§§    18-20)  COMMUNICATION   OF   ACCEPTANCE  31 

a  binding-  contract."  The  offer  contemplated  the  plaintiff's  prom- 
ise or  agreement  to  finish  in  two  weeks  as  an  acceptance,  and  there 
was  nothing  in  his  conduct  that  indicated  to  the  defendants  his 
agreement  to  perform.  The  offeror  may,  however,  indicate  some 
act  by  which  the  offeree  may  manifest  his  intention  to  be  bound, 
the  performance  of  which,  without  actual  communication,  shall 
be  sufficient  as  an  acceptance,  and  when  the  offeree  has  thus 
indicated  his  intention  the  contract  is  complete.  It  seems  that 
the  rule  which  prevails  in  regard  to  contracts  by  correspondence 
must  rest  upon  this  ground. °^ 

Contract  by  Correspondence  :. 

It  is  now  settled  that  the  acceptance  in  case  of  contract  by 
correspondence  where  an  answer  is  invited  by  post  is  complete 
as  soon  as  the  letter  of  acceptance  is  dispatched. ^^     Where   an 

Bi WHITE  V.  CORLIES,  46  N.  Y.  467,  Throckmorton  Gas.  Contracts,  1. 
See  ''Contracts:'  Dec.  Dig.  (Key-No.)  §  22;    Cent.  Dig.  §§  82-92,  lOk-lOS. 

5  2  "I  have  always  believed  the  law  to  be  this,  that  when  an  offer  is  made 
to  another  party,  and  in  that  offer  there  is  a  request,  expressed  or  implied, 
that  he  must  signify  his  acceptance  by  doing  some  particular  thing,  then  as 
soon  as  he  does  that  thing  he  is  bound.  If  a  man  sent  an  offer  abroad  say- 
ing, 'I  wish  to  know  whether  you  will  supply  me  ^ith  goods  at  such  and  such 
a  price,  and  if  you  agree  to  that  you  must  ship  the  first  cargo  as  soon  as 
you  get  this  letter,'  there  can  be  no  doubt  that  as  soon  as  the  cargo  was 
shipped  the  contract  would  be  complete,  and  if  the  cargo  went  to  the  bot- 
tom of  the  sea  it  would  go  to  the  bottom  of  the  sea  at  the  risk  of  the  or- 
derer.  So,  again,  where,  as  in  the  case  of  Ex  parte  Harris,  In  re  Imperial 
Land  Company  of  Marseilles,  Law  Rep.  7  Ch.  App.  5S7,  a  person  writes  a 
letter  and  says,  'I  offer  to  take  an  allotment  of  shares,'  and  he  expressly  or 
impliedly  says,  'If  you  agree  with  me,  send  an  answer  by  the  post,'  there,  as 
soon  as  he  has  sent  that  answer  by  the  post,  and  put  It  out  of  his  control, 
and  done  an  extraneous  act  which  clinches  the  matter,  and  shows  beyond  all 
doubt  that  each  side  is  bound,  I  agree  the  contract  is  perfectly  plain  and 
clear."  Brogden  v.  Railway  Co.,  2  App.  Cas.  6G6,  691,  per  Lord  Blackburn. 
tSee  "Contracts,"  Dec.  Dig.   (Key-Xo.)  §  22;    Cent.  Dig.  §§  82-92,  lO^-lOS. 

53  Adams  v.  Lindsell,  1  Barn.  &  Aid.  681;  Potter  v.  Sanders,  6  Hare,  1; 
Levy  V.  Cohen,  4  Ga.  1 ;  Tayloe  v.  Insurance  Co.,  9  How.  390,  13  L.  Ed.  187 ; 
Averill  v.  Hedge,  12  Conn.  424 ;  Vassar  v.  Camp,  11  N.  Y.  441 ;  Darlington 
Iron  Co.  V.  Foote  (C.  C.)  16  Fed.  64G;  Thomson  v.  James,  18  Dunl.,  B.  &  M. 
1;  MINNESOTA  LINSEED  OIL  CO.  v.  LEAD  CO.,  4  Dill.  431,  Fed.  Cas. 
No.  9,63."),  Throckmorton  Cas.  Contracts,  24;  Mactier's  Adm'rs  v.  Frith,  6 
Wend.  (N.  Y.)  103,  21  Am.  Dec.  262;  Harris'  Case,  L.  R.  7  Ch.  587;  Trevor 
v.  Wood,  36  N.  Y.  307,  93  Am.  Dec.  511 ;  Wheat  v.  Cross,  31  Md.  99,  103, 
1  Am.  Rep.  28;  Ferrier  v.  Storer,  63  Iowa,  484,  19  N.  W.  288,  50  Am.  Rep. 
752;  Stockham  v.  Stockham,  32  Md.  196;  Moore  v.  Pierson,  6  Iowa,  279,  71 
Am.  Dec.  409;  Perrj-  v.  Iron  Co.,  15  R.  I.  380,  5  Atl.  632,  2  Am.  St  Rep.  902; 
Calhoun  v.  Atchison,  4  Bush  (Ky.)  261,  96  Am.  Dec.  299;  Hamilton  v.  In- 
surance Co.,  5  Pa.  3;J9;  Abbott  v.  Shepard,  48  N.  H.  14;  Hunt  v.  Higmau, 
70  Iowa,  406,  30  N.  W.  769;  Kempuer  v.  Cohn,  47  Ark.  519,  1  S.  W.  869,  58 
Am.  Rep.  775;   Cobb  v.  Foree,  38  111.  App.  255;    Burton  v.  United  States,  202 


32  OFFER  AND   ACCBPTANCH  (Ch.  2 

offer  is  made  by  post  it  may  be  assumed  that  an  answer  by  post 
is  invited  unless  the  contrary  is  indicated,  but  the  rule  is  not 
necessarily  confined  to  cases  where  the  offer  is  made  in  that 
manner.  "Where  the  circumstances  are  such  that  it  must  have 
been  within  the  contemplation  of  the  parties  that,  according  to 
the  ordinary  usages  of  mankind,  the  post  might  be  used  as  a 
means  of  communicating  the  acceptance  of  an  offer,  the  accept- 
ance is  complete  as  soon  as  posted."  °*  The  rule  has  not  been 
established  without  vigorous  dissent."'' 

There  was  at  first  some  hesitation  in  applying  this  rule  in  cases 
where  the  letter  of  acceptance  was  lost  or  delayed  in  transmis- 
sion ;  but  it  is  now  settled  by  the  great  weight  of  authority  that, 
when  an  acceptance  has  been  posted,  the  contract  is  complete, 
and  cannot  be  affected  by  the  subsequent  fate  of  the  letter.'^    "The 

U.  S.  344.  26  Sup.  Ct.  688,  50  L.  Ed.  1057,  6  Ann.  Cas.  362,  and  note;  Scot- 
tish-American Mortg.  Co.  V.  Davis  (Tex.  Civ.  App.)  72  S.  W.  217.  Contra. 
McCulloch  V.  Insurance  Co.,  1  Pick.  (Mass.)  278  (but  see  Brauer  v.  Shaw,  168 
Mass.  198,  46  N.  E.  617,  60  Am.  St.  Rep.  387).  But  communication  of  accept- 
ance to  the  offeror's  agent  Is  not  sufficient,  even  where  it  is  accompanied  by 
a  direction  to  give  notice.  New  v.  Germania  Fire  Ins.  Co.,  171  Ind.  33,  85 
N.  E.  703,  131  Am.  St.  Rep.  245.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  26; 
Cent.  Dig.  §§  119,  120. 

04Henthorn  v.  Eraser,  [1892]  2  Ch.  27,  per  Lord  HerschelL  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  26;   Cent.  Dig.  §§  119,  120. 

8  5  See  dissenting  opinion  of  Bramwell,  L.  J.,  in  HOUSEHOLD  INS.  CO.  v. 
GRANT,  4  Exch.  Div.  221,  Throckmorton  Cas.  Contracts,  12;  British  & 
Am.  Tel.  Co.  v.  Colson,  L.  R.  6  Exch.  108;  McCulloch  v.  Insurance  Co.,  1 
Pick.  (Mass.)  278;  Langdell,  Sum.  Cont  §§  14,  15;  Parsons,  Cont  (8th  Ed., 
Williston)  *4S4,  note  L 

There  Is  much  force  in  the  argument  that  communication  is  essential  to 
the  counter  promise  which  is  the  consideration,  and  that  hence  the  accept- 
ance cannot  take  effect  until  its  receipt  Moreover,  granting  that  the  offeror 
must  be  taken  to  have  contemplated  that  the  post  may  be  used  as  a  means 
of  communicating  the  acceptance,  it  is  its  communication,  and  not  the  mere 
putting  it  in  course  to  be  communicated,  which  he  practically  contemplates. 
It  is  a  somewhat  violent  assumption  to  attribute  to  him  any  different  inten- 
tion than  that  which  would  be  expressed  by  making  the  offer  conditional 
upon  receipt  of  the  acceptance,  which  would  be  enforced.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  26;    Cent.  Dig.  §§  119,  120. 

B6  HOUSEHOLD  INS.  CO.  v.  GRANT,  4  Exch.  Div.  221,  Throckmorton 
Cas.  Contracts,  12;  Mactier's  Adm'rs  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am. 
Dec.  262 ;  Tayloe  v.  Insurance  Co.,  9  How.  390,  13  L.  Ed.  187 ;  Washburn  v. 
Fletcher,  42  Wis.  152 ;  Vassar  v.  Camp,  11  N.  Y.  441 ;  Dunlop  v.  Higgins,  1 
H.  L.  Cas.  381 ;  Bryant  v.  Booze,  55  Ga.  438 ;  Howard  v.  Daly,  61  N.  Y.  362, 
19  Am.  Rep.  285;  Duncan  v.  Topham,  8  C.  B.  225;  Chytraus  v.  Smith,  141 
lU.  231,  30  N.  E.  450;  College  Mill  Co.  v.  Fidler  (Tenn.  Ch.)  58  S.  W.  382. 
See,  contra,  British  &  Am.  Tel.  Co.  v.  Colson,  L.  R.  6  Exch.  108,  disapproved 
in  Harris'  Case,  supra.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  26;  Cent, 
Dig.  §§  119,  120. 


§§    18-20)  COMMUNICATION    OF   ACCEPTANCE  33 

acceptor,"  it  has  been  said,  "in  posting  the  letter  has  'put  it  out 
of  his  control,  and  done  an  extraneous  act  which  clinches  the 
matter,  and  shows  beyond  all  doubt  that  each  side  is  bound.' 
How,  then,  can  a  casualty  in  the  post,  whether  resulting  in  delay — 
which  in  commercial  transactions  is  often  as  bad  as  no  delivery — 
or  in  nondelivery,  unbind  the  parties  or  unmake  the  contract?"  °'' 
The  rule  is  the  same  where  the  telegraph  is  properly  used  as  the 
mode  of  signifying  acceptance,  and  the  contract  is  complete  on 
delivery  of  the  message  to  the  telegraph  company/*  This  rule, 
of  course,  does  not  apply  where  the  offer  expressly  or  by  impli- 
cation stipulates  that  the  contract  is  to  be  complete,  and  the  offer 
binding,  when  the  acceptance  is  received.  In  such  a  case  the  mail- 
ing of  the  acceptance  is  not  enough.^" 

To  constitute  an  acceptance,  however,  the  letter  must  be  actually 
and  properly  posted.  If  it  is  delivered  to  an  agent  of  t\^e  acceptor, 
and  he  neglects  to  mail  it,  or  to  a  postman  not  authorized  to 
receive  letters,  or  if  it  is  posted  without  a  stamp,  or  improperly 
addressed,  it  is  not  an  acceptance.®" 

In  England,  where  the  doctrine  was  first  established  that  the 
mailing  of  a  letter  of  acceptance  makes  the  contract,  a  letter 
passes  beyond  the  control  of  the  sender  when  it  is  mailed ;  and 
such  was  formerly  the  case  in  this  country.  Under  the  present 
regulations  of  the  United  States  Post  Ofhce  Department,®^  how- 
ever, the  sender  may,  upon  proper  identification,  reclaim  the  letter 
from  the  office  at  which  it  has  been  mailed,  or  even  require  the 
postmaster  at  such  office  to  telegraph  to  the  ofhce  to  which  it 

57  HOUSEHOLD  INS.  CO.  v.  GRANT,  4  Exch.  Div.  221,  Throckmorton 
Gas.  Contracts,  12.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  26;  Cent.  Dig.  §§ 
119,  120. 

5  8  MINNESOTA  LINSEED  OIL  CO.  v.  LEAD  CO.,  4  Dill.  431,  Fed.  Cas. 
No.  9.635,  Throckmorton  Cas.  Contracts,  24;  Trevor  v.  Wood,  36  N.  Y.  307, 
93  Am.  Dec.  511;  Brauer  v.  Shaw,  168  Mass.  198,  46  N.  E.  617,  60  Am.  St. 
Rep.  387.     See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  26;    Cent.  Dig.  §§  119,  120. 

6  9  Vassar  v.  Camp,  11  N,  Y.  441;  Lewis  v.  Browning,  130  Mass.  173;  Haas 
V.  Myers,  111  111.  421,  53  Am.  Rep.  634.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  26;    Cent.  Dig.  §§  119,  120. 

«o  Henderson  v.  Coke  Co.,  140  U.  S.  25,  11  Sup.  Ct.  691,  35  L.  Ed.  332; 
Maclay  v.  Harvey,  90  111.  525,  32  Am.  Rep.  35;  Blake  v.  Insurance  Co.,  67 
Tex.  160,  2  S.  W.  308,  60  Am.  Rep.  15;  In  re  London  &  N.  Bank  [1900]  1 
Ch.  220.  Deposit  of  a  letter  in  a  street  letter  box  is  equivalent  to  deposit  in 
the  post  office.  Wood  v,  Callaghan,  61  Mich.  402,  28  N.  W.  162.  1  Am.  St. 
Rep.  597.  "While  constructive  notice  of  acceptance  is  permitted  to  take  the 
place  of  actual  communication  in  such  cases,  still  the  law  re<iuires  that  the 
message  of  acceptance  shall  pass  beyond  the  recall  or  control  of  the  accep- 
tor." Busher  v.  New  York  Life  Ins.  Co.,  72  N.  II.  551,  58  Atl.  4L  See  "Con- 
tractu," Dec.  Dig.  (Key-No.)  §  26;   Cent.  Dig.  §§  119,  120. 

•  1  U.  S.  Post  Office  Regulations,  (1913  Ed.)  §S  552,  553. 
Clabk  Cont.(3i)  Ed.) — 3 


34  OFFER  AND   ACCEPTANCE  (Ch.  2 

is  addressed,  directing  its  return,  if  undelivered.  Since,  therefore, 
a  letter  does  not  pass  beyond  the  control  of  the  sender  until  it 
is  delivered,  a  question  has  arisen  as  to  whether  the  mere  posting 
of  the  letter  constitutes  an  irrevocable  acceptance.®"  In  accord- 
ance with  the  general  rule,  however,  it  has  been  held  that  it  does, 
and  that  a  contract  exists  from  the  moment  of  mailing  the  letter, 
notwithstanding  that  it  is  reclaimed  from  the  mails  by  the  sender.*' 


CHARACTER,    MODE,   PLACE,   AND   TIME   OF   ACCEPT- 
ANCE 

21.     The  acceptance  of  an  offer  to  result  in  a  contract  must  be — 

(a)  Absolute  and  unconditional. 

(b)  Identical  with  the  terms  of  the  offer. 

(c)  In  the  mode,  at  the  place,  and  within  the  time  expressly  or 

impliedly  required  by  the  offer. 

The  acceptance  of  an  offer  must  be  absolute,  and  identical  with 
the  terms  of  the  offer;  or,  as  it  has  been  expressed,  "an  acceptance 
to  be  good  must  in  every  respect  meet  and  correspond  with  the  of- 
fer, neither  falling  within  nor  going  beyond  the  terms  proposed, 
but  exactly  meeting  them  at  all  points  and  closing  with  them  just 
as  they  stand."  '*    Unless  this  is  so,  there  is  no  meeting  of  minds 

«2  9  Cyc.  297.  In  the  English  case  of  Ex  parte  Cote,  L.  R.  9  Ch.  27,  It  was 
held  that  the  posting  of  a  letter  in  France,  where  it  was  subject  to  be  re- 
claimed by  the  sender  until  its  dispatch  from  the  office  of  transmission,  did 
not  transfer  title  to  certain  bills  of  exchange  inclosed.  But  in  Canterbury 
V.  Sparta,  91  Wis.  53,  64  N.  W.  311,  30  L.  R.  A.  845,  51  Am.  St.  Rep.  870, 
upon  a  very  similar  state  of  facts,  the  sender  was  held  liable  to  the  extent 
of  an  inclosed  draft,  even  though  he  had  reclaimed  it  from  the  post  office 
authorities.  And  see,  also,  McDonald  v.  Chemical  Nat.  Bank,  174  U.  S.  610, 
19  Sup.  Ct.  787,  43  L.  Ed.  HOG ;  Crown  Roint  Iron  Co.  v.  ^tna  Ins.  Co.,  127 
N.  Y.  608,  28  N.  E.  653,  14  L.  R.  A.  147.  See  ''Contracts,"  Dec.  Dig.  (Key- 
No.)  §  26;    Cent.  Dig.  §§  119,  120. 

63  Scottish-American  Mortgage  Co.  v.  Davis  (Tex.  Civ.  App.)  72  S.  W.  217 
(quoting  with  approval  the  statement  of  Vredenburgh,  J.,  in  Hallock  v.  Ins. 
Co.,  26  N.  J.  Law,  268,  2S0,  that  "the  acceptor  can  no  more  overtake  and 
countermand  his  letter  mailed,  than  he  can  his  words  of  acceptance  after 
they  have  issued  from  his  lips").  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  26; 
Cent.  Dig.  §§  119,  120. 

64  Knowlton's  Anson,  Cont.  22,  note;  ELIASON  v.  HENSHAW,  4  Wheat. 
225,  4  L.  Ed.  556.  Throckmorton  Cas.  Contracts,  18;  Potts  v.  Whitehead,  23 
N.  J.  Eq.  512 ;  Thomas  v.  Greenwood,  69  Mich.  215,  37  N.  W.  195 ;  Mactier's 
Adui'rs  V.  Frith,  6  Wend.  (N.  T.)  103,  21  Am.  Dec.  262;  Eggleston  v.  Wagner, 
40  Mich.  610,  10  N.  W.  37;  Jordan  v.  Norton,  4  Mees.  &  W.  155;  Corcoran 
V.  White,  117  111.  118,  7  N.  E.  525,  57  Am.  Rep.  858;    Siebold  v.  Davis,  67 


§    21)         CHARACTER,  MODE,  PLACE,  AND   TIME    OF    ACCEPTANCE  35 

and  expression  of  one  and  the  same  common  intention — the  inten- 
tion expressed  by  one  of  the  parties  is  either  doubtful  in  itself,  or 
is  different  from  that  of  the  other.  The  intention  of  the  parties 
must  be  distinct  and  common  to  both.*' 

If  a  person  offers  to  do  a  definite  thing,  and  the  person  to  whom 
the  offer  is  made  accepts  conditionally,  or  introduces  a  new  term 
into  the  acceptance,  his  answer  is  not  an  acceptance.  It  is  either  a 
mere  expression  of  willingness  to  treat,  or  it  is  in  effect  a  counter 
offer.®*  A  proposal  to  accept,  or  an  acceptance  varying  the  terms 
from  those  offered,  is  a  rejection  of  the  offer,  and  the  offer  is  then 
no  longer  open  to  acceptance.*^ 

Agreement  to  Make  Contract 

If  a  person  proposes  to  sell  another  property,  and  the  latter  ac- 
cepts "subject  to  the  terms  of  a  contract  being  arranged"  between 
their  solicitors,  there  is  no  agreement,  for  the  acceptance  is  not 
final,  but  subject  to  a  discussion  to  take  place  between  the  agents 
of  the  parties.*^     If  anything  is  left  for  future  arrangement,  the 

Iowa,  560,  25  N.  W.  778 ;  Stagg  v.  Compton,  81  Ind.  171 ;  Corser  v.  Hale,  149 
Pa.  274,  24  Atl.  285 ;  Wilkin  Mfg.  Co.  v.  Lumber  Co.,  94  Mich.  158,  53  N.  AV. 
1045 ;  Wristen  v.  Bowles,  82  Cal.  84,  22  Pae.  113G :  Scott  v.  Davis,  141  Mo. 
213,  42  S.  W.  714;  Coad  v.  Rogers,  115  Iowa,  478,  88  N.  W.  947;  Seymour 
V.  Armstrong,  62  Kan.  720,  64  Pac.  612 ;  Shady  Hill  Nursery  Co.  v.  Waterer, 
179  Mass.  318,  60  X.  E.  7S9 ;  Marschall  v.  Eisen  Vineyard  Co.,  28  N.  Y.  Supp. 
62,  7  Misc.  Rep.  674;  Strong  &  Trowbridge  Co.  v.  H.  Baars  &  Co.,  60  Fla. 
253,  54  South.  92.     See,  also,  the  cases  cited  in  following  notes. 

As  to  acceptance  by  a  person  other  than  the  one  to  whom  the  offer  was 
made,  see  post.  p.  ?-io.  State  v.  Board  of  State  Prison  Com'rs,  37  Mont.  378, 
96  Pac.  736;  Gibney  &  Co.  v.  Arlington  Brewery  Co.,  112  Va.  117,  70  S.  E. 
485.     See  "Contracts,"  Dec.  Dig.  (Key-yo.)   §  24;    Cent.  Dig.  §§  100-103. 

«8  Ante,  p.  3. 

68  Hough  V.  Brown,  19  N.  Y.  Ill;  Briggs  v.  Sizer,  30  N.  Y.  647;  Borland 
7.  Guffy,  1  Grant,  Cas.  (Pa.)  394;  Harlow  v.  Curtis,  121  Mass.  320;  Maclay 
V.  Harvey,  90  111.  525,  32  Am.  Rep.  35 ;  Hammond  v.  AA'inchester,  82  Ala.  470, 
2  South.  892;  Crabtree  v.  Opera-House  Co.  (C.  C.)  39  Fed.  746;  Hubbell  v. 
Palmer,  76  Mich.  441,  43  N.  W.  442;  Bristol  Aerated  Bread  Co.  v.  Maggs,  44 
Ch.  Div.  616;  Robertson  v.  Tapley,  48  Mo.  App,  239;  Crossley  v.  Maycock, 
18  Eq.  180;  Mygatt  v.  Tarbell,  85  Wis.  457,  55  N.  W.  1031;  Jones  v.  Daniel, 
[1894]  2  Ch.  332;  Davenport  v.  Newton,  71  Vt  11,  42  Atl.  1087;  Russell  v. 
Manufacturing  Co.,  106  Wis.  320,  82  N.  W.  134;  Harris  v.  Scott,  67  N.  H. 
437,  32  AU.  770 ;    Putnam  v.  Grace.  161  Mass.  237.  37  N.  E.  W6. 

If  so  accepted  by  the  original  proposer,  it  becomes  a  binding  promise.  Es- 
may  v.  Gorton,  18  111.  483.  See  "Contracts,"  Dec.  Dig.  {Kcy-Xo.)  §  24;  Cent. 
Dig.  §§  lOO-lOS. 

Of  Minnfai)Olis  &  St.  L.  Ry.  Co.  v.  Mill  Co.,  119  U.  S.  149,  7  Sup.  Ct.  168, 
30  L.  Ed.  376;  Hyde  v.  Wrench.  3  Bcav.  334;  Virginia  Hot  Springs  Co.  v. 
Harrison.  93  Va.  .569,  25  S.  E.  8SS;  James  v.  Darby,  100  Fed.  224,  40  C.  C. 
A.  341.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  %  24;    Cent.  Dig.  §§  100-103. 

«»  Honeyman  v.  Marryat,  6  H.  L.  Cas.  112.     It  seems  that  an  acceptance 


36  OFFER  AND   ACCEPTANCE*  (Ch.  2 

parties  have  not  agreed."  It  is  not  to  be  understood  from  this  that 
there  must  be  nothing  at  all  to  be  done  after  the  acceptance.  If 
the  parties  are  fully  agreed,  there  is  a  binding  contract,  notwith- 
standing the  fact  that  a  formal  contract  is  to  be  prepared  and 
signed; ''°  but  the  parties  must  intend  the  agreement  to  be  binding. 
If,  though  fully  agreed  on  the  terms  of  their  contract,  they  do  not 
intend  to  be  bound  until  a  formal  contract  is  prepared  and  signed, 
there  is  no  contract,  and  the  circumstance  that  the  parties  do  in- 
tend a  formal  contract  to  be  drawn  up  is  strong  evidence  to  show 
that- they  did  not  intend  the  previous  negotiations  to  amount  to  an 
agreement.'^ 

Acceptance  Varying  from  Offer 

An  ofTer  to  sell  a  specified  quantity  of  goods  cannot  be  made 
binding  on  the  proposer  by  ordering  a  less  quantity,  for  there  is 
no  offer  to  sell  any  quantity  greater  or  less  than  that  specified. ''* 
And  the  same  is  true  where  the  offer  is  to  sell  a  certain  quantity 
each  of  several  articles,  and  the  person  to  whom  the  offer  is  made 
orders  the  specified  quantity  of  one  or  more  of  them,  but  declines 

of  an  offer  to  sell  land,  "subject  to  the  title  being  approved  by"  the  accept- 
or's attorneys,  is  not  conditional.  Hussey  v.  Home-Payne,  4  App.  Cas.  311,  8 
Ch.  Div.  670.  See  "Vendor  and  Purchaser,"  Dec.  Dig.  {Key-No.)  §§  16,  17; 
Cent.  Dig.  §§  17-21. 

89  Martin  v.  Fuel  Co.  (C.  C.)  22  Fed.  596;  Appleby  v.  Johnson,  L.  R.  9 
C.  P.  158;  Bank  of  Columbia  v.  Hagner,  1  Pet.  455,  7  L.  Ed.  219;  Utley  v. 
Donaldson,  94  U.  S.  29,  24  L.  Ed.  54 ;  First  Nat.  Bank  v.  Hall,  101  U.  S."  43, 
25  L.  Ed.  822;  Brown  v.  N.  Y.  Central  R.  Co..  44  N.  Y.  79;  Canton  Co.  v. 
Railroad  Co.,  21  Md.  383,  396 ;  First  Nat.  Bank  v.  Clark,  61  Md.  400,  48  Am. 
Rep.  114 ;  Bruce  v.  Bishop,  43  Vt.  161 ;  Sibley  v.  Felton,  156  Mass.  273,  31  N. 
E.  10 ;  Sparks  v.  Pittsburgh  Co.,  159  Pa.  295,  28  Atl.  1.52 ;  Stanley  v.  Dowdes- 
well,  L.  R.  10  C.  P.  102 ;  Shepard  v.  Carpenter,  54  Minn.  153,  55  N.  W.  906 ; 
St.  Louis  &  S.  F.  R.  Co.  v.  Gorman,  79  Kan.  643,  100  Pac.  647,  28  L.  R.  A. 
fX.  S.)  637.  And  see  post,  p.  52.  See  ''Vendor  and  Purchaser:'  Dec.  Dig. 
(Keij-No.)  §§  16,  17;    Cent.  Dig.  §§  17-21. 

ToRidgway  V.  Wharton,  6  H.  L.  Cas.  238;  Bolton  v.  Lambert,  41  Ch.  Div. 
295 ;  Bonnewell  v.  Jenkins,  8  Ch.  Div.  70,  73 ;  Cheney  v.  Transportation 
Line,  59  Md.  557;  Allen  v.  Chouteau,  102  Mo.  309,  14  S.  W.  869;  Lawrence 
V.  Railroad  Co.,  84  Wis.  427,  54  N.  W.  797 ;  Sanders  v.  Fruit  Co.,  144  N.  Y. 
209,  39  N.  E.  75,  29  L.  R.  A.  431,  43  Am.  St.  Rep.  757.  See  "Vendor  and  Pur- 
chaser," Dec.  Dig.  (Keg-No.)  §§  16,  17;    Cent.  Dig.  §§  17-21. 

7iRidg^\'ay  v.  Wharton,  6  PL  L.  Cas.  238;  Winu  v.  Bull,  7  Ch.  Div.  20; 
Wills  V.  Carpenter,  75  Md.  SO,  25  Atl.  415 ;  Commercial  Tel.  Co.  v.  Smith,  47 
Hun  (N.  Y.)  494.  See  "Vendor  and  Purchaser,"  Dec.  Dig.  {Key-No.)  §§  16, 
17;    Cent.  Dig.  §§  17-21. 

7  2  Minneapolis  &  St.  L.  Ry.  Co.  v.  Rolling-Mill  Co.,  119  U.  S.  149,  7  Sup. 
Ct  168,  30  L.  Ed.  376 ;  Michigan  Bolt  &  Nut  Co.  v.  Steel.  Ill  Mich'.  153,  69 
N.  W.  241.  See  ""Sales,"  Dec.  Dig.  (Key-No.)  §§  22-23;  Cent.  Dig.  §§  S9-48; 
''Contracts,"  Cent.  Dig.  §§  71,  75, 


§    21)         CHARACTER,  MODE,  PLACE,  AND    TIME    OF    ACCEPTANCE  37 

the  others. ■^^  Nor  will  an  order  of  a  certain  quantity  of  goods,  ac- 
cepted by  sending  a  less  quantity,  impose  any  liability  for  the 
goods  sent.^*  So,  also,  if  a  person  proposes  to  sell  land  to  another 
for  a  certain  sum,  and  the  latter  replies  that  he  will  give  a  less 
sum,  there  is  nothing  binding  between  the  parties.'"'  Again,  if  a 
person  oilers  to  sell  land,  saying  nothing  as  to  the  place  of  pay- 
ment, and  the  acceptance  specifies  that  payment  shall, be  made  at 
the  acceptor's  place  of  residence,  there  is  no  contract,  since,  under 
the  offer,  the  proposer  would  be  entitled  to  payment  at  his  place 
of  residence.'" 

Manner,  Place,  and  Time  of  Acceptance 

It  is  also  essential  that  the  acceptance  shall  be  made  in  the  man- 
ner, at  the  place,  and  within  the  time  expressly  or  impliedly  desig- 
nated in  the  offer.  The  proposer  has  the  right  to  dictate  terms  in 
respect  to  the  time,  place,  and  manner  of  acceptance ;  and  when  he 
does  so,  like  all  other  terms,  they  must  be  complied  with.  In  a 
leading  case  on  this  point  the  defendant  offered  to  buy  flour  from 
the  plaintiffs,  stating  in  his  offer  that  the  answer  should  be  sent  by 
return  of  the  wagon  which  brought  the  offer.  The  plaintiffs,  in- 
stead of  sending  their  acceptance  by  the  wagon,  mailed  it  to  the 
defendant  at  a  place  other  than  the  destination  of  the  wagon,  where 
it  was  duly  received  by  him.  It  was  held,  however,  that  he  was 
not  bound  by  the  acceptance,  as  it  was  not  sent  to  the  place  pre- 
scribed."^ If  an  offer  asks  that  the  answer  be  sent  by  the  messen- 
ger who  brings  the  offer,  or  by  mail,  or  by  telegraph,  it  must  be 

7  3  Thomas  v.  Greenwood,  69  Mich.  21".,  37  N.  W.  19.5.  See  "Sales,"  Dec. 
Dig.  (Key-No.)  |§  22,  23;  Cent.  Dig.  §§  59-iS;  "Contracts,"  Cent.  Dig.  §§ 
7i,  75. 

7  4  Bruce  v.  Pearson,  3  Johns.  (N.  Y.)  534.  As  to  Implied  contract  from  re- 
taining and  using  or  consuming  the  goods  so  sent,  see  ante,  p.  19,  and  note 
7.  See  -'Sales,"  Dec.  Dig.  (Eey-Xo.)  §§  22,  28;  Cent.  Dig.  §§  S9-J,8;  "Conn 
tracts,"  Cent.  Dig.  g§  11,  75. 

7  8  Hyde  v.  Wrenrh,  3  Beav.  336.  And  see  post,  p.  20,  and  cases  cited. 
Bee  "Vendor  and  Purchaser,"  Dec.  Dig.  {Key-No.)  §§  16,  17;  Cent  Dia  «« 
17-21.  •       y-  88 

76  Baker  v.  Holt,  56  Wis.  100,  14  N.  W.  8;  Sawyer  v.  Brossart,  67  Iowa, 
6kS,  2.-)  N.  W.  876,  5  Am.  Rep.  371;  Gilbert  v.  Baxter,  71  Iowa.  327.  32  N. 
W.  364;  Langellier  v.  Schaefer,  36  Minn.  361,  31  N.  W.  690;  Robinson  v 
Weller,  81  Ga.  704.  8  S.  E.  447;  Maynard  v.  Tabor,  53  Me.  511.  See  "Vendor 
and  Purchaser,"  Dec.  Dig.  {Key-No.)  §§  16,  17;    Cent.  Din.  §§  17-21 

77ELIASON  V.  HENSHAW,  4  Wheat.  22.=).  4  L.  Ed.  556,  Throckmorton 
Cas.  Contracts,  18.  Where  a  person  residing  in  one  state  makes  a  written 
ofifer  to  a  r>erson  residing  in  another,  and  at  a  distance,  to  sell  lands,  with- 
out arranging  for  a  personal  meeting,  an  acceptance  by  mail  la  authorized. 
Wiloox  V.  Cllne,  70  Mich.  517,  38  N.  W.  555.  See  "Contracts,"  Dec  Dig 
{Keii-No.)  §  22;    Cent.  Dig.  {§  82-92,  10^-108. 


4rJ4HG6 


38  OFFEB   AND  ACCEPTANCE  (Ch. 2 

SO  sent,  to  be  effectived*  An  answer  by  mail  is  insufficient  if  the 
telegraph  is  the  mode  prescribed.'^*  An  offer  by  mail,  which  says 
nothing  as  to  the  mode  of  sending  the  answer, 'impliedly  requires 
an  answer  by  mail,  or  possibly  authorizes  one  by  telegraph, ^° 
though  an  acceptance  sent  by  any  other  mode,  and  reaching  the 
proposer  within  a  reasonable  time,  might  be  held  sufficient.*^  An 
oft'er  by  telegraph  impliedly  requires  an  answer  by  telegraph,  and 
an  answer  by  mail  will  not  be  sufficient. 

If  the  offer  specifies  a  time  for  acceptance,  it  is  a  term  of  the 
offer,  and  an  acceptance  after  the  specified  time  will  have  no  ef- 
fect.®* An  offer  by  correspondence,  for  instance,  calling  for  an 
answer  "in  course  of  post,"  or  "by  return  mail,"  must  be  accepted 
by  return  mail.®'  It  may  safely  be  said  that  any  substantial  delay 
will  be  fatal,  even  where  an  answer  by  "return  mail"  is  not  re- 
quested. An  acceptance  sent  three  or  four  days  after  the  receipt 
of  the  offer  has  been  held  too  late,  and  there  seems  no  reason  to 
doubt  that  a  delay  of  one  day  would  be  equally  fatal.®*    If  no  time 

7  8  Carr  v.  Duval,  14  Pet.  83,  10  L.  Ed.  361.  Putting  a  letter  of  acceptance 
in  tlie  private  letter  box  of  the  proposer  has  been  held  sufficient.  Howard  v. 
Daly,  61  N.  Y.  362,  19  Am.  Rep.  285.  As  to  what  constitutes  mailing  a  letter, 
see  ante,  p.  33,  note  CO.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  22;  Cent. 
Dig.  §§  S2-02,  lOlt-108. 

7 B  Home  V.  Niver,  168  Mass.  4,  46  N.  E.  393.  See  ''Contracts,"  Dec.  Dig. 
(Key-No.)  §  22;  G&tit.  Dig.  §§  82-92,  101,-108. 

80  Mactier's  Adm'rs  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262;  Vassar 
V.  Camp,  11  N.  Y.  441;  Tayloe  v.  Insurance  Co.,  9  How.  390,  13  L.  Ed.  187; 
Wilcox  V.  Cline,  70  Mich.  517,  38  N.  W.  555 ;  Trevor  v.  Wood,  36  N.  Y.  307,  93 
Am.  Dec.  511.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig.  §§  82-92, 
104-108. 

81  Trounstine  v.  Sellers,  35  Kan.  447,  11  Pac.  441.  See  "Contracts,"  Deo. 
Dig.  (Key-No.)  §  22;  Cent.  Dig.  §§  82-92,  10^-108. 

82Lpngworth  v.  Mitchell,  26  Ohio  St.  334;  Potts  v.  Whitehead,  20  N.  J. 
Eq.  55;  Britton  v.  Phillips,  24  How.  Prac.  (N.  Y.)  Ill;  Richardson  v.  Hard- 
wick  106  U.  S.  252,  1  Sup.  Ct.  213,  27  L.  Ed.  145 ;  Union  Nat.  Bank  v.  Miller, 
106  N.  C.  347,  11  S.  E.  321,  19  Am.  St.  Rep.  538 ;  Weaver  v.  Burr,  31  W.  Va. 
736  8  S.  E.  743,  3  L.  R.  A.  94 ;  Cummings  v.  Realty  Co.,  86  Wis.  382,  57  N. 
W.  43.  And  see  Park  v.  Whitney,  148  Mass.  278,  19  N.  E.  161.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  20;  Cent.  Dig.  §§  67-70. 

8  3  Dunlop  V.  Higgins,  1  H.  L.  Cas.  387;  Carr  v.  Duval,  14  Pet.  83,  10  L. 
Ed  361 ;  Maclay  v.  Harvey,  90  111.  525,  32  Am.  Rep.  35 ;  Averill  v.  Hedge, 
12  Conn.  424 ;  Tinn  v.  Hoffman,  29  Law  T.  (N.  S.)  271.  Cf.  Palmer  v.  Insur- 
ance Co.,  84  N.  Y.  63.  If  the  deUvery  of  a  letter  containing  an  offer  is  de- 
layed through  the  sender's  fault,  or,  it  may  no  doubt  be,  without  the  fault 
of  either  party,  an  acceptance  as  soon  as  the  letter  is  received  is  in  time. 
It  is  by  return  mail.  See  Leake,  Cont.  18;  Adams  v.  Lindsell,  1  Barn.  & 
Aid   681.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  20;  Cent.  Dig.  §§  67-70. 

84  Taylor  v.  Rennie,  35  Barb.  (N.  Y.)  272;  MINNESOTA  LINSEED  OIL  CO. 
V.  LEAD  CO.,  4  Dill.  435,  Fed.  Cas.  No.  9,635,  Throckmorton  Cas.  Contracts, 
24;  Maclay  v.  Harvey,  90  111.  525,  32  Am.  Rep.  .35;  Ortman  v.  Weaver  (C.  C.) 


§§    22-23)  REVOCATION    OF   OFFER  39 

for  acceptance  is  specified,  then  a  reaspnable  time  is  implied.®' 
What  is  a  reasonable  time  must  necessarily  depend  on  the  nature 
of  the  offer  and  the  circumstances  of  each  particular  case. 


REVOCATION  OF  OFFER 

22.  Until  the  moment  of  acceptance,  an  offer  may  be  revoked, 

and  a  subsequent  acceptance  will  be  inoperative,  except 
that — 
EXCEPTION — Where  the  party  making  the  offer  has  contract- 
ed under  seal  or  for  a  consideration  to  hold  it  open  for  a 
certain  time,  he  may  not  revoke  it  within  such  time. 

23.  Notice  of  revocation  must  be  communicated,  to  prevent  an  ac- 

ceptance from  being  effective. 

Since  an  offer,  unaccepted,  creates  no  rights,  it  follows  that  it 
may  be  revoked  at  any  time  before  acceptance.®'  An  order,  for  in- 
stance, given  to  the  agent  of  the  party  to  whom  it  is  made,  who  ha? 
no  authority  to  accept  it,  is  revocable  at  any  time  before  his  prin- 
cipal accepts  it;  and  it  is  immaterial  that  the  order  recites  that  it  is 
taken  with  the  understanding  that  it  is  positive,  and  not  subject  to 

11  Fed.  35S;  Dunlop  v.  Higgins,  1  H.  L.  Cas.  3S7.  See  "Contracts"  Dec.  Dig. 
(Eey-'No.)  §  20;  Cent.  Dig.  §§  67-70. 

85  Ramsgate  Hotel  Co.  v.  Montefiore,  L.  R.  1  Exch.  100;  MINNESOTA  LIN- 
SEED OIL  CO.  V.  LEAD  CO.,  4  Dill.  431,  Feci.  Cas.  No.  9,635,  Throckmorton 
Cas.  Contracts,  §  24;  Ferrier  v.  Storer,  03  Iowa,  484,  19  N.  W.  288,  50  Am. 
Rep.  752 ;  Averill  v.  Hedge,  12  Conn.  424 ;  Trounstine  v.  Sellers,  35  Kan.  447, 

11  Pac.  441;  McCracken  v.  Harned,  66  N.  J.  Law,  37,  48  Atl.  513;  Sanford 
V.  Howard,  29  Ala.  684,  68  Am.  Dec.  101;  Lehigh  Valley  Coal  Co.  v.  Curtis, 
22  111.  App.  394 ;  Chicago  &  G.  E.  R.  Co.  v.  Dane,  43  N.  Y.  240 ;  Kempner  v. 
Cobn,  47  Ark.  519,  1  S.  W.  809,  58  Am.  Rep.  775 ;  Stone  v.  Harmon,  31  Minn. 
512,  19  N.  W.  88;  Omaha  Loan  &  Trust  Co.  v.  Goodman,  62  Neb.  197,  86  N. 
W.  1082.  This  has  been  held  to  apply  to  offers  of  a  reward  to  the  public 
generally  by  way  of  advertisement.  Loring  v.  City  of  Boston,  7  Mete.  (Mass.) 
409.  But  see  post.  p.  49,  note  22.  See  "Contracts,"  Dec.  Dig.  {Key-So.)  §  20; 
Cent.  Dig.  §§  67-70. 

•  •IDE  V.  LEISER,  10  Mont.  5,  24  Pac.  695,  24  Am.  St.  Rep.  17,  Throck- 
morton Cas.  Contracts,  20;  Payne  v.  Cave,  3  Term  R.  148;  OCford  v.  Da  vies, 

12  C.  B.  (N.  S.)  748;  Countess  of  Dunmore  v.  Alexander,  9  Shaw,  D.  &  B. 
190;  Quick  v.  Wheeler,  78  N.  Y.  300;  lloughwout  v.  Boisaubin,  18  N.  J.  Eq. 
315;  Schenectady  Stove  Co.  v.  Ilolbrook,  101  N.  Y.  45,  4  N.  E.  4;  Wheat  v. 
Cro.ss,  31  Md.  99,  1  Am.  Rep.  28;  Boston  &  M.  R.  R.  Co.  v.  Bartlett,  3  Cush. 
(Mass.)  224;  Weiden  v.  Woodruff,  38  Mich.  130;  Larmon  v.  Jordan,  50  111. 
204;  Crocker  v.  Railroad  Co!,  24  Conn.  249;  :Martin  v.  Hudson,  81  Cal.  42, 
22  Pac.  292;  Miller  v.  Douville,  45  La.  Ann.  214,  12  South.  132;  Eskridge 
v.  Glover,  5  Stew.  &  P.  (Ala.)  204,  26  Am.  Dec.  344;  Tucker  v.  Lawrence,  56 
VL  467 ;  Benton  v.  Association,  170  Mass,  534,  49  N.  E.  928,  64  Am.  St.  Rep. 


40  OFFER  AND   ACCEPTANCE  (Ch.  2 

change  or  countermand.'^  Where  an  offer  is  made  to  several  per- 
sons, it  must  be  accepted  by  all  before  it  becomes  binding-  on  the 
proposer,  for  an  acceptance  by  less  than  all  is  not  a  compliance 
with  the  terms  of  the  offer;  and  it  follows  that  such  an  offer  may 
be  revoked  at  any  time  before  it  is  accepted  by  all.** 
Qifer  Under  Seal 

It  has  been  said  that  an  offer  under  seal  may  not  be  revoked 
at  common  law.^®  This  view,  however,  is  due  to  a  misconception 
of  certain  English  cases,®"  which  hold  that  a  deed  or  contract  un- 
der seal  is  binding  upon  a  party  from  the  time  it  is  executed  by 
him  with  intent  to  give  it  effect,  although  it  has  not  been  delivered 
or  communicated  to  the  other  party ;  and  being  a  valid  obligation 
from  the  time  of  its  execution,  it  may  not  be  revoked.  Such  a  deed, 
however,  is  not  a  mere  offer  to  become  bound,  but  itself  imposes 
an  obligation.  The  correct  doctrine  is  that  an  offer  under  seal, 
as  in  the  case  of  offers  generally,  may  be  revoked  at  any  time  be- 
fore acceptance.®^  Where,  however,  an  offer  is  accompanied  by  an 
agreement  under  seal  to  leave  it  open  for  a  certain  length  of  time, 
it  constitutes  an  option  or  refusal,  the  rules  in  regard  to  which  are 
stated  below. 

Agreement  to  Hold  Offer  Open — "Refusals"  and  "Options" 

An  offer,  though  coupled  with  a  promise  to  hold  it  open  for  ac- 
ceptance for  a  specified  time,  may  nevertheless  be  revoked  or  with- 
drawn before  the  time  has  expired,  provided  it  is  not  under  seal  and 
there  is  no  consideration  for  the  promise  to  hold  the  offer  open.®- 

320.  The  addition  of  a  new  term  to  an  offer  is  a  revocation  of  that  offer. 
Travis  v.  Insurance  Co.,  104  Fed.  4S6,  43  C.  C.  A.  653.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  19;  Cent.  Dig.  §§  57-60. 

8  7  National  Refining  Co.  v.  Miller,  1  S.  D.  548,  47  N.  W.  962.  And  see 
Challenge  Wind  &  Feed  Mill  Co.  v.  Kerr,  93  Mich.  328,  53  N.  W.  555 ;  Harvey 
V.  Duffey,  99  Cal.  401,  33  Fac.  897.  See  "Contracts;'  Dec.  Dig.  (Key-Xo.) 
§  19;  Cent.  Dig.  §§  57-60. 

8  8  Burton  v.  Shotwell,  13  Bush  (Ky.)  271.  See  "Contracts;'  Dec.  Dig.  (Key- 
No.)  §  19;  Cent.  Dig.  §§  57-60. 

8  9  Anson,  Cont.  (8th  Ed.)  32. 

90  Xenos  V.  Wickham,  L.  R.  2  H.  L.  296;  Doe  d.  Garnons,  5  B.  &  C.  671,  29 
Rev.  Rep.  355;  Butler  &  Baker's  Case,  3  Coke,  26b.  See,  also,  Roberts  v. 
Security  Co.,  [1897]  1  Q.  B.  111.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  19; 
Gent.  Dig.  §§  57-60. 

91  See  preface  29  Rev.  Rep.  v-ix  (Sir  Frederick  Pollock);  16  Yale  L.  J,  155; 
Ashley,  Cont.  2.54  et  seq. 

•  2  IDE  V.  LEISER,  10  Mont.  5,  24  Pac.  695»  24  Am.  St  Rep.  17,  Throck- 
morton Cas.  Contracts,  20;  Cooke  v.  Oxley,  3  Term  R.  653  (as  to  tMs  case,  see 
post,  p.  43,  note  1);  Routledge  v.  Grant,  4  Bing.  653;  Head  v.  Diggon,  3 
Man.  &  R.  97 ;  Stevenson  v.  McLean,  5  Q.  B.  Div.  351 ;  Dickinson  v.  Dodds, 
2  Ch.  Div.  463;   Chicago  &  G.  E.  R.  Co.  v,  Dane,  43  N.  Y.  240;  Stensgaard 


§§    22-23)  REVOCATION    OF   OFFER  41 

Cases  of  this  kind  arise  where  a  person  gives  another  the  "refusal" 
of  land  or  goods  for  a  certain  time,  or  an  option  to  buy.  If  the 
promise  to  keep  an  offer  open  for  a  specified  time  is  under  seal,  or 
is  supported  by  a  valuable  consideration — as  where  money  is  paid 
or  promised  for  the  option  or  refusal — the  promise  constitutes  a 
contract  in  itself,  and,  of  course,  is  binding.®^  A  failure  to  keep 
such  an  offer  open  constitutes  a  breach  of  contract  for  which  an  ac- 
tion for  damages  will  lie.  As  to  whether  the  offeree  may  become 
entitled  to  specific  performance  of  the  contract  of  sale  by  accept- 
ance after  the  offer  has  been  withdrawn,  in  violation  of  the  con- 
tract to  keep  it  open,  there  is  a  conflict  of  authority.  Some  courts 
hold  that,  although  the  act  of  revocation  itself  constitutes  a  breach 
of  contract,  there  can  be  no  acceptance  of  an  offer  that  has  in  fact 
been  revoked,  and  therefore  there  is  no  subsisting  contract  of  sale 
which  may  be  enforced.^*  Other  cases,  however,  representing  the 
weight  of  authority,  regard  the  option,  where  it  is  under  seal  or 
supported  by  a  consideration,  as  a  contract  to  sell  or  convey  upon 
condition,  and  therefore  as  entitling  the  offeree  to  specific  perform- 
ance upon  compliance  with  the  condition,  as  by  notice  of  accept- 
ance of  the  offer  to  sell  within  the  time  stipulated  in  the  option. '-"^ 

V.  Smith,  43  Minn,  11,  44  N.  W.  669,  19  Am.  St.  Rep.  205 ;  Coleman  v.  Apple- 
garth,  68  Md.  21,  11  Atl.  2S4,  6  Am.  St.  Rep.  417;  Eskridge  v.  Glover,  5  Stew. 
&  P.  (Ala.)  264,  26  Am.  Dec.  344;  Larmon  v.  Jordan,  56  111.  206;  Weiden  v.' 
Woodrufif,  38  Mich.  130 ;  Klee  v.  Grant,  4  Misc.  Rep.  88,  23  N.  Y.  Supp.  855 ; 
Connor  v.  Renneker,  25  S.  C.  514 ;  Sault  Ste.  M.,  L.  &  I.  Co.  v.  Simons  (0.  C.) 
41  Fed.  835;  Weaver  v.  Burr,  31  W.  Va.  736,  8  S.  E.  743,  3  L.  R.  A.  94; 
Brown  v.  Savings  Union,  134  Cal.  448,  66  Pac.  592;  Corbett  v.  Cronkhite, 
2:;9  111.  9,  87  N.  E.  874 ;  post,  p.  148.  See  ''Contracts,"  Dec.  Dig.  (Key-No.) 
f  19;  Cent.  Dig.  §§  57-60. 

08  WATKINS  v.  ROBERTSON,  105  Va.  269,  54  S.  E.  33,  5  L.  R.  A.  (N.  S.) 
nn4.  115  Am.  St.  Rep.  880,  Throckmorton  Cas.  Contracts,  43  [quot.  Clark  on 
Contracts,  (2d  Ed.)  33];  Grabenhorst  v.  Nicodemus,  42  Md.  236;  Stitt  v. 
Huidokuper,  17  Wall.  384,  21  L.  Ed.  644;  Bradford  v.  Foster,  87  Tenn.  4,  9  S. 
W.  195;  Chadsey  v.  Condley,  62  Kan.  853,  62  Pac.  663.  See  "Sales,"  Dec. 
Dig.  (Key-No.)  §§  2),  25-;  Cent.  Dig.  §§  ^9-52;  "Specific  Performance,"  Dec. 
Dig.  (Key-No.)  §  57;  Cent.  Dig.  §  178;  "Vendor  and  Purchaser,"  Dec.  Dig. 
(Key-No.)  §  18;  Cent.  Dig.  §  23. 

»4  See  Litz  v.  Goosling,  93  Ky.  185,  19  S.  W.  527,  21  L.  R.  A.  127;  GraybiU 
v.  Brugh,  89  Va.  895,  17  S.  E.  558,  21  L.  R.  A.  133,  37  Am.  St.  Rep.  894.  See 
"Specific  Performance,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §  178. 

8  0  WATKIXS  V.  ROBERTSON,  105  Va.  269,  54  S.  E.  33,  5  L.  R.  A.  (N.  S.) 
1194,  115  Am.  St.  Rep.  8S0,  Throckmorton  Cas.  Contracts,  43  [overruling  Gray- 
bill  y.  Brugh,  supra];  Willard  v.  Tayloe,  8  Wall.  (U.  S.)  5.''j7,  19  L.  Ed.  501; 
O'Brien  v.  Bolond,  166  Mass.  481,  44  N.  E.  602;  Mansflold  v.  Ilodgdon,  147 
Ma.ss.  304,  17  N.  B.  544;  McMillan  v.  Ames,  33  Minn.  257,  22  N.  W.  012; 
Hayes  v.  O'Rricn.  149  111.  403,  37  N.  E.  73,  2,3  L.  R.  A.  555;  9  Cyc.  Law  & 
Proa  287;  /iiniuerman  v.  Brown  (N.  J.  Ch.)  36  Atl.  675;  ChaUsej  v.  Condley, 


42  OFFER  AND  ACCEPTANCB  (Ch.  2 

Communication  of  Revocation — Necessity  of 

Revocation  must  be  communicated,  or  at  least  brought  to  the 
knowledge  of  the  offeree,  to  have  any  effect.  As  we  have  seen,  an 
acceptance  may  take  effect  at  the  moment  it  is  dispatched.  A  rev- 
ocation, on  the  contrary,  is  not  effective  until  the  moment  it  is  re- 
ceived. A  person,  therefore,  who  has  accepted  an  offer  not  known 
oy  him  to  have  been  revoked,  may  safely  act  on  the  footing  that  the 
offer  and  acceptance  constitute  a  contract  binding  on  both  parties. 
A  person  who  has  received  an  offer  by  post  or  telegraph,  and  post- 
ed or  telegraphed  his  acceptance,  has  thereby  created  a  binding 
contract,  though  notice  of  revocation  of  the  offer  has  been  mailed 
or  wired  to  him  before  his  acceptance.'®  The  law,  it  is  said,  re- 
gards the  proposer  as  making  his  offer  during  every  instant  of  time 
that  his  letter  is  traveling,  and  during  the  period  that  may  be  con- 
sidered as  a  reasonable  time  for  acceptance.  The  party  to  whom 
the  offer  is  made  is  therefore  entitled  to  consider  that  it  is  still 
being  made,  unless  he  has  notice  to  the  contrary,  and  that  his  ac- 
ceptance concludes  a  binding  contract.  The  revocation  cannot  be 
held  to  be  communicated  merely  because  it  has  been  put  in  the 
course  of  transmission.  If,  after  an  offer  has  been  posted,  or  sent 
by  any  other  means,  the  proposer  sends  a  withdrawal  by  such 
means  that  it  reaches  the  person  to  whom  the  offer  was  sent  at 
the  same  time  as  the  offer,  this  is  a  good  revocation,  and  an  accept- 
ance of  the  offer  will  be  ineffectual.^^ 

Same — Sufficiency  of 

There  has  been  some  difffculty  in  cases  in  which  the  offeror  has 
done  some  act  indicating  an  intention  to  retract,  as  by  a  sale  of 

62  Kan.  853,  62  Pac.  663;  Bradford  v.  Foster,  87  Tenn.  4,  9  S.  W.  195.  See 
"Specific  Performance,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §  178. 

86  Byrne  v.  Tienhoven,  5  C.  P.  Div.  349;  Hentliorn  v.  Frazer  [1892]  66  L. 
T.  (N.  S.)  439,  2  Cli.  27 ;  Harris'  Case,  L.  R,  7  Ch.  App.  587 ;  Tayloe  v.  Insur- 
ance Co.,  9  How.  390,  13  L.  Ed.  187;  Patrick  v.  Bowman,  149  U.  S.  411,  13 
Sup.  Ct  811,  8G6,  37  L.  Ed.  790;  Hamilton  v.  Insurance  Co.,  5  Pa.  342; 
Lungstrass  v.  Insurance  Co.,  48  Mo.  201,  8  Am.  Rep.  100;  Kempner  v.  Cohn, 
47  Ark.  519,  1  S.  W.  8G9,  58  Am.  Rep.  775 ;  Wheat  v.  Cross,  31  Md.  99,  1  Am. 
Rep.  28;  Hallock  v.  Insurance  Co.,  26  N.  J.  Law,  2GS;  Faulkner  v.  Hebard, 
26  Vt.  452 ;  McCotter  v.  City  of  New  Yorlc,  37  N.  Y.  325 ;  Weiden  v.  Woodruff, 
38  Mich.  130;  Crocker  v.  Railroad  Co.,  24  Conn.  249;  Cobb  v.  Foree,  38  111. 
App.  255;  Brauer  v.  Shaw,  168  Mass.  198,  46  N.  E.  617,  GO  Am.  St.  Rep.  387; 
Wester  v.  Casein  Co.  of  America,  140  App.  Div.  442,  125  N.  Y.  Supp.  335. 
See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  19;  Cent.  Dig.  §§  57-60. 

9T  Dunmore  v.  Alexander,  9  Shaw  &  D.  190.  Suppose,  however,  the  letter 
containing  the  offer  should  be  read,  and  an  acceptance  dispatched  in  good 
faith,  before  the  letter  containing  the  withdrawal  is  opened.  It  would  seem, 
on  principle,  that  in  such  a  case  the  acceptance  must  be  effectual.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §§  19,  22;  Cent.  Dig.  §§  57-60,  104-108. 


§§   22-23)  EEVOCATION   or   OFFEB  '  43 

property  offered,  putting  it  out  of  his  power  to  perform,  but  with- 
out communicating  his  revocation.  It  is  probably  settled  that  any 
overt  act  clearly  showing  an  intention  to  revoke  is  enough,  provid- 
ed the  person  to  whom  the  offer  was  made  has  notice  of  such  act 
before  he  accepts.  The  revocation  need  not  be  communicated,  but 
it  is  sufficient  if  he  has  knowledge  of  acts  clearly  indicating  an  in- 
tention to  revoke.^*  It  is  not  clearly  settled  what  would  be  suffi- 
cient notice.  It  might  probably  be  said  that  the  notice  must  be 
such  as  reasonably  amounts  to  knowledge  of  acts  inconsistent  with 
the  continuance  of  the  offer.  In  case  of  an  oft'er  to.  sell  specific 
property,  actual  knowledge  of  its  sale  to  another  would  clearly 
show  an  intent  to  revoke,  but  it  is  doubtful  whether  information 
from  a  stranger  that  such  a  sale  has  been  made,  or  that  the  propos- 
er has  changed  his  mind,  would  be  sufficient,  as  it  would  scarcely 
be  reasonable  to  require  a  man  to  believe  and  act  on  such  state- 
ments. In  the  absence  of  sufficient  notice  or  knowledge  of  a  revo- 
cation, the  offer,  according  to  the  better  doctrine  and  the  weight 
of  authority,  continues  open  and  will  be  turned  into  a  binding 
promise  by  its  acceptance.*^  Some  courts,  however,  seem  to  have 
held,  contrary  to  reason  and  principle,  that  notice  of  withdrawal 
is  not  necessary.^    Where  the  parties  are  dealing  with  each  other  at 

•8  Dickinson  v.  Dodds,  2  Ch.  Div.  463 ;  Coleman  v,  Applegarth,  68  Md.  21, 
11  Atl.  284,  6  Am.  SL  Rep.  417.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  19; 
Cent.  Dig.  §§  57-60. 

98  Boston  &  M.  R.  R.  Co.  v.  Bartlett,  3  Cush.  (Mass.)  224,  225;  Great  North- 
ern R.  Co.  V.  Witham,  L.  R.  9  C.  P.  16;  Eskridge  v.  Glover,  5  Stew,  &  P. 
(Ala.)  264,  26  Am.  Dec.  344;  Ilougbwout  v.  Boisaubin,  18  N,  J.  Eq.  318; 
Henthorn  v.  Frazer  [1S92]  66  L.  T.  (N.  S.)  439,  2  Ch.  27;  Cheney  v.  Coolc, 
7  Wis.  413;  School  Directors  v.  Trefethren,  10  111.  App.  127;  Paddock  v. 
Davenport,  107  N.  C,  710,  12  S.  E.  464;  Wall  v.  Railroad  Co.,  86  Wis.  48,  56 
N.  W.  367.  And  see  Dambmann  v.  Lorentz,  70  Md.  380,  17  Atl.  3S9,  14  Am. 
St  Rep.  364.  See,  also,  po.st,  p.  148.  See  "Contracts,"  Dec.  Dig.  (Kcy-Xo.)  §§ 
19,  22;  Cent.  Dig.  §§  57-60,  101,-lOS. 

1  Tucker  v.  Woods,  12  Johns.  (N.  Y.)  190,  7  Am.  Dec.  305 ;  Bean  v.  Bur- 
bank,  16  ^le.  458,  33  Am.  Dec.  681;  Gillespie  v.  Edmonston,  11  Humph. 
(Tenn.)  553.  And  see  Cooke  v.  Oxle.v,  3  Term  R.  653.  This  case  has  been 
very  much  criticised  and  disapproved  in  so  far  as  it  seems  to  hold  that,  where 
an  offer  gives  a  specified  time  within  which  it  may  be  accepted,  an  acceptance 
within  that  time,  without  notice  that  the  offer  has  been  revoked,  does  not 
bind;  that  is  to  say,  that  notice  of  the  revocation  is  not  necessary.  If  the 
case  was  intended  to  go  this  far,  it  is  not  considered  as  authority  in  this 
country.  Boston  &  M.  R.  R.  Co.  v.  Bartlett,  3  Cush.  (Mass.)  224.  Nor,  It 
seems,  is  It  followed,  even  In  England,  to  such  an  extent  as  we  have  suggest- 
ed. Indeed,  a  later  English  case  says:  "All  that  Cooke  v.  Oxley  adirms  Is 
that  a  party  who  gives  time  to  another  to  accept  or  reject  a  proposal  is  not 
bound  to  wait  till  the  time  expires.  •  •  •  The  offer  may  be  revoked  before 
acceptanf'e.  If  the  offer  Is  not  retracted,  it  is  In  force  as  a  continuing  offei 
till  the  time  of  accepting  or  rejecting  it  has  arrived."     Stevenson  v.  Mcl.*<ia, 


44  OFFER  AND   ACCEPTANCH  (Ch.  2 

a  distance  by  correspondence,  it  is  the  settled  law,  in  these  as  in 
other  cases,  that  the  offer  continues  open  until  notice  of  its  with- 
drawal is  not  only  sent,  but  received  by  the  party  to  whom  it  was 
made,  and  is  turned  into  a  binding  promise  if  accepted  before  re- 
ceipt of  the  notice.^  Knowledge  in  these  cases  also  may  be  equiv- 
alent to  notice  sent  and  received. 

The  case  of  an  offer  made  to  the  public  generally  by  publication 
"  stands  on  a  different  footing  from  an  offer  made  directly  to  a  defi- 
nite person.    Such  an  offer  may  be  revoked  in  the  manner  in  which 
it  was  made.' 

LAPSE  OF  OFFER 

24.  An  ofifer  will  lapse,  and  so  be  determined  without  express  rev- 
ocation, so  that  a  subsequent  acceptance  will  have  nc 
effect — 

(a)  On  the  efflux  of  a  time  specified  for  acceptance,  or  of  a  rea- 

sonable time  where  no  time  is  specified; 

(b)  On  its  rejection ; 

(c)  On  failure  of  the  acceptance  to  comply  with  the  terms  of  the 

offer,  which  is  equivalent  to  rejection; 

(d)  On  the  death  or  insanity  of  either  party  before  acceptance. 

EMux  of  Time 

An  offer  may  lapse  and  be  determined  by  the  ef!lux  of  a  specified 
time  for  acceptance.  If  a  person  should  offer  to  sell  goods  "if  the 
offer  is  accepted  by"  a  certain  day,  an  acceptance  after  that  time 
would  have  no  effect.  After  the  specified  time  has  passed  without 
acceptance,  the  offer  lapses,  or  is  determined  without  any  further 
action  on  the  part  of  the  proposer,  and  it  is  no  longer  open  for  ac- 

5  Q.  B.  Div.  351.  If  the  case  of  Cooke  v.  Oxley  merely  decides  that  an  offer, 
coupled  w-ith  a  promise  to  keep  it  open  for  a  specified  time,  may  be  revoked, 
to  the  knowledge  of  the  other  party,  before  the  time  ha.s  expired,  where 
there  is  no  consideration  for  the  promise  to  keep  it  open,  it  is  in  accord  with 
the  law  in  this  country,  and  with  the  later  decisions  in  England.  See  "Coiv- 
tracts,"  Dec.  Dig.  {Key-No.)  §§  19,  22;  Vent.  Dig.  §§  57-60,  104-108. 

2  Hamilton  v.  Insurance  Co.,  5  Pa.  339 ;  Larmon  v.  Jordan,  56  111.  204 ; 
Averill  v.  Hedge,  12  Conn.  434 ;  j^Ioore  v.  Pierson,  6  Iowa,  279,  71  Am.  Dec. 
409;  ante,  pp.  31-34.  See  "Covfracf.9,"  Dec.  Dig.  (Key-No.)  §§  19,  22;  Cent. 
Dig.  §§  82-92,  104-108. 

3  Shuey  v.  United  States,  92  U.  S.  73,  23  L.  Ed.  G07.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  19;  Cent.  Dig.  §§  57-60;  "Rewards,"  Dec.  Dig.  {Key-No.)  §§ 
3-7;  Cent.  Dig.  §§  3-7. 


§  24)  LAPSE   OF    OFFER  45 

ceptance.*     If  no  time  is  specified,  the  offer  is  determined  by  the 
lapse  of  a  reasonable  time.' 

Rejection 

The  rejection  or  refusal  of  an  offer  by  the  person  to  whom  it  is 
made  causes  the  offer  to  lapse.  In  order  that  an  acceptance  may 
be  effective  after  a  refusal,  the  offer  must  have  been  renewed  by 
the  proposer.® 

So,  also,  a  failure  to  comply  with  a  condition  of  the  offer  as  to 
the  mode  of  acceptance,  or  an  acceptance  conditionally,  or  on  terms 
varying  from  those  offered,  will  cause  the  offer  to  lapse,  for  this  is, 
in  effect,  a  rejection  of  the  offer.''  Thus,  where  a  person  offered  to 
sell  land  at  a  certain  sum,  and  the  person  to  whom  the  offer  was 
made  replied  that  he  would  give  a  less  sum,  and  afterwards,  when 
this  was  refused,  and  when  the  proposer  was  no  longer  willing  to 
adhere  to  his  original  proposal,  sought  to  bind  him  by  accepting 
at  the  sum  first  asked,  it  was  held  that  the  proposal  to  buy  at  a  less 
sum  than  asked  was  a  refusal  of  the  offer,  and  a  counter  proposal, 
and  that  the  original  offer  could  not,  after  that,  he  turned  into  a 
promise  by  acceptance.' 

*  Ante,  p.  38.  and  cases  cited  in  notes  82-84. 

5  MINNESOTA  LINSEED  OIL  CO.  v.  COLLIER  WHITE  LEAD  CO.,  4 
Dill.  4.31,  17  Fed.  Cas.  No.  9,635,  Throckmorton  Cas.  Contracts,  24;  Rams- 
gate  Hotel  Co.  V.  Montefiore,  1  Exch.  109;  Loring  v.  City  of  Boston,  7  Mete. 
(Mass.)  409 ;  ante,  p.  39,  and  cases  cited  in  note  85.  Continuing  offer.  Sherley 
V.  Peehl.  84  Wis.  40,  54  N.  W.  267.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  20; 
Cent.  Dig.  §§  67-70. 

•  Tinn  v.  Hoffman.  29  Law  T.  (N.  S.)  271 ;  Hyde  v.  Wrench,  3  Beav.  334 : 
Davis  V.  Parish,  Litt.  Sel.  Cas.  (Ky.)  153,  12  Am.  Dec.  287;  W.  &  H.  M. 
Goulding  v.  Hammond,  4  C.  C.  A.  533,  54  Fed.  639;  Sheffield  Canal  Co.  v. 
Sheffield  &  R.  Ry.  Co.,  3  Ry.  Cas.  121,  132 ;  Arthur  v.  Gordon  (C.  C.)  37  Fed. 
558;  Richardson  v.  Lenhard,  48  Kan.  629,  29  Paa  1076.  See  ''Contracts," 
Dec.  Dig.  (Key-No.)  §  20;  Cent.  Dig.  §§  67-70. 

T  Hyde  v.  Wrench,  3  Beav.  336 ;  First  Nat.  Bank  v.  Hall,  101  U.  S.  50,  25 
Ll  Ed.  822;  Minneapolis  &  St  L.  Ry.  Co.  v.  Rolling-Mill  Co.,  119  U.  S.  149, 
7  Sup.  Ct.  1G8,  30  L.  Ed.  376;  Carr  v.  Duval,  14  Pet.  77,  10  L.  Ed.  361;  Der- 
rick V.  Monette,  73  Ala.  75;  Jenncss  v.  Iron  Co.,  53  Me.  20;  Weaver  v.  Burr, 
31  W.  Va.  736,  8  S.  E.  743,  3  L.  R.  A.  94 ;  Clay  v.  Ricketts,  66  Iowa,  362,  23 
N.  W.  755;  Corn  wells  v.  Krengel,  41  111.  394;  Eggleston  v.  Wagner,  46  Mich. 
610,  10  N.  W.  37 ;  Iron  Works  v.  Douglas,  49  Ark.  355,  5  S.  W.  585 ;  North- 
western Iron  Co.  V.  Meade,  21  Wis.  474,  94  Am.  Dec.  557;  First  Nat.  Bank 
V.  Clark,  61  Md.  400,  48  Am.  Rep.  114;  Crabtree  v.  Opera-House  Co.  (C.  C.) 
39  Fed.  746 ;  W.  &  H.  M.  Goulding  v.  Hammond,  4  C.  C.  A.  533,  ,54  Fed.  639. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  S4;  Cent.  Dig  §§  lOO-IO.'i. 

8  Hyde  v.  Wrench,  3  Beav.  330.  Bee  "Contracts"  Dec.  Dig.  (Key-No.)  S  24; 
Cent.  Dig.  §§  J 00-1  Oft 


4G  OFFER  AND   ACCEPTANCE  (Ch.  2 

Death  or  Insanity  of  Party 

The  death  «  or  insanity  "■"  of  either  party  before  acceptance  of  an 
offer  causes  the  ofifer  to  lapse.  An  acceptance  communicated  to  the 
personal  representatives  of  the  proposer  after  his  death  cannot  bind 
them  ;  nor  can  the  representatives  of  the  person  to  whom  an  offer 
has  b'ejn  made,  and  who  has  since  died,  bind  the  proposer  by  ac- 
cepting it  on  behalf  of  the  estate.  An  offer,  as  we  have  said,  is  con- 
sidered as  continuing  up  to  the  time  of  acceptance,  but  if  one  of  the 
parties  dies,  then  there  is  on  one  by  whom  or  to  whom,  as  the  case 
may  be,  the  ofifer  can  be  considered  as  being  made.^^  The  fact  that 
an  acceptance  is  dispatched  in  ignorance  of  the  proposer's  death 
can  make  no  difference.  Since,  however,  an  acceptance  by  mail 
takes  efifect  at  the  moment  of  its  dispatch,  the  death  of  the  proposer 
before  the  receipt  of  the  acceptance,  but  after  it  has  been  mailed, 
does  not  cause  the  ofifer  to  lapse,  since,  before  his  death,  it  has  been 
turned  into  a  binding  promise  by  the  acceptance. ^^ 

So,  also,  the  dissolution  of  a  partnership  after  an  ofifer  has  been 
made  by  the  firm,  and  before  its  acceptance,  with  notice  thereof  to 
the  person  to  whom  the  offer  was  made,  revokes  the  offer  ;^^  and 
it  would  seem  that  dissolution  of  a  firm  to  whom  an  ofifer  is  made, 
before  acceptance,  must  necessarily  cause  the  ofifer  to  lapse,  as  the 
party  to  whom  the  offer  was  made  is  no  longer  in  existence. 

9  Wallace  v.  Townsend,  43  Ohio  St.  537.  3  N.  E.  601,  54  Am.  Rep.  820 ; 
Mactier's  Adm'rs  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  202;  Pratt  v. 
Trustees  of  Baptist  Soc,  93  111.  475,  34  Am.  Rep.  187;  In  re  Ilelfenstein's 
Estate,  77  Pa.  328,  18  Am.  Rep.  449;  Frith  v.  Lawrence.  1  Paige  (N.  Y.)  4.34  ; 
Blades  v.  Free,  9  Barn.  «&  C.  1G7 ;  Campanari  v.  Woodburn,  15  C.  B.  400 ; 
Lee  V.  Griffin,  1  Best  &  S.  272;  Aitkin  v.  Lang's  Adm'r,  106  Ky.  652,  51  S. 
W.  154,  90  Am.  St.  Rep.  263 ;  Werner  v.  Humphreys,  2  Man.  &  G.  853 ;  Marr 
V.  Shaw  (C.  C.)  51  Fed.  860.  See  "Contracts,"  Dec.  Dig.  (Eey-yo.)  §§  19,  20; 
Cent.  Dig.  §  58;  "Corporations,"  Dec.  Dig.  {Key-'No.)  %  83;  Cent.  Dig.  §§ 
S'^S-SSe;   "Suhscriptions,"  Dec.  Dig.  (Key-'No.)  §§  //,  18;   Cent.  Dig.  §§  5,20,21. 

10  The  Palo  Alto.  2  Ware,  344,  Fed.  Cas.  No.  10,700;  Beach  v.  First  M.  E. 
Church  96  111.  177.  It  seems  that  knowledge  of  the  insanity  by  the  other 
party  is  essential.  Drew  v.  Nunn,  4  Q.  B.  Div.  661 ;  Imperial  Loan  Co.  v. 
Stone,  [1892]  1  Q.  B.  599.  As  to  validity  of  contract  of  insane  person,  see 
post   p.  223.   See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  19;    Cent.  Dig.  §  58. 

11  Frith  V.  Lawrence,  supra;  Pratt  v.  Trustees,  supra.  See  "Contracts," 
Dec    Dig.  (Key-No.)  §§  19.  20;    Cent.  Dig.  §§  57-60,  67-70. 

12  Mactier's  Adm'rs  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262.  See 
"C07itracts,"  Dec.  Dig.  (Key-No.)  §§  19,  20;    Cent.  Dig.  §§  57-60.  67-70. 

IS  Goodspeed  v.  Plow  Co.,  45  Mich.  322,  7  N.  W.  902.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  19;  Cent.  Dig.  §S  57-60;  "Partnership,"  Dec.  Dig. 
iKey-No.)  §  243;   Cent.  Dig.  §§  510-513. 


§  25)  OFFERS  TO  THE  PUBLIC  GENERALLY  47 


OFFERS  TO  THE  PUBLIC  GENERALLY 

25.  An  offer  need  not  be  made  to  an  ascertained  person,  but  no  con- 
tract can  arise  until  it  has  been  accepted  by  an  ascertained 
person. 

In  order  that  an  offer  may  result  in  a  contract  it  need  not  be 
made  to  a  definitely  ascertained  person.  It  may  be  made  to  any 
one  of  the  public  generally,  or  to  any  one  of  a  class  of  persons,  who 
may  accept  it.  These  offers  are  sometimes  said  to  be  made  "to  all 
the  world,"  but  this  is  not  correct.^*  Take,  for  instance,  the  case  of 
a  proposal  by  way  of  advertisement  of  a  reward  for  the  rendering 
of  certain  services,  addressed  to  the  public  at  large,  such  as  an  ad- 
vertisement for  the  return  of  lost  property,  or  for  the  apprehension 
of  persons  who  have  committed  a  crime,  or  for  certain  information. 
This  is  an  offer,  to  any  one  who  shall  accept  it,  of  a  promise  for  an 
act,  and  becomes  a  binding  promise  to  pay  the  reward  as  soon  as 
any  individual  renders  the  services.^'' 

Off"ers  of  this  character  are  generally  advertisements  for  such 
services  as  we  have  mentioned,  but  they  are  not  limited  to  them.^® 
Sellers  of  a  medicinal  remedy,  who,  to  increase  their  sales,  advertise 

1*  See  Spencer  v.  Harding,  L.  R.  5  C.  P.  561.  See  "Contracts,"  Dec.  Dig. 
(^ey-'So.)  §  n;   Cent.  Dig.  §§  112-118. 

15  Wentworth  v.  Day,  3  Mete.  (Mass.)  352,  37  Am.  Dec.  145;  Besse  v.  Dyer, 
9  Allen  (Mass.)  151,  85  Am.  Dec.  747;  Loring  v.  City  of  Boston,  7  Mete. 
(Mass.)  409 ;  Wilson  v.  Guyton,  8  Gill  (Md.)  213 ;  Pierson  v.  Morcli,  82  N.  Y. 
.503 ;  First  Nat.  Bank  v.  Hart,  55  111.  62 ;  Montgomery  County  v.  Robinson, 
85  111.  174;  Harson  v.  Pike,  16  Ind.  140;  Goldsborough  v.  Cradle,  28  Md. 
477;  Ryer  v.  Stockwell,  14  Cal.  134,  73  Am.  Dec.  G34;  Hayden  v.  Songer,  56 
Ind.  42,  26  Am.  Rep.  1 ;  Thruston  v.  Thornton,  1  Cush.  (Mass.)  91 ;  Morse  v. 
Bellows,  7  N.  H.  549,  563,  28  Am.  Dec.  372;  Janvrln  v.  Town  of  Exeter,  48 
X.  II.  S3.  2  Am.  Rep.  185 ;  Cummings  v.  Gann,  52  Pa.  484 ;  Morrell  v.  Quarles, 
35  Ala.  544.  As  to  the  intention  to  become  bound,  see  post,  p.  50,  note  28. 
Hee  ''Reicards,"  Dec.  Dig.  {Kcij-No.)  §S  3-7;    Cent.  Dig.  §§  5-7. 

16  Seymour  v.  Armstrong,  62  Kan.  720,  64  Pac.  612.  A  published  time  table 
Is  an  offer  by  the  railroad  company  to  the  public  generally  that,  if  they  will 
apply  for  a  ticket  for  carriage,  they  will  be  carried  as  stated  in  the  time 
table,  and  the  offer  is  accepted  by  each  person  who  applies  for  a  ticket.  Den- 
ton V.  Great  Northern  R.  Co.,  5  El.  &  Bl.  860;  Sears  v.  Railroad  Co.,  14 
.\llen  (Mass.)  433,  92  Am.  Dec.  780.  The  same  doctrine  has  been  applied  in 
the  case  of  bounties  offered  by  towns,  cities,  or  counties  to  any  person  who 
should  enli.st  Into  the  military  service  of  the  United  States.  Crowell  v.  Hop- 
kinton,  45  N.  II.  9.  As  to  offers  of  premiums  in  lior.se  races,  see  Alvord  v. 
Smith,  63  Ind.  58.  Offer  by  persons  purchasing  railroad  on  foreclosure  and 
organizing  new  company  to  e.xchange  new  stock  for  old.  Schorestene  v.  Ise- 
lin.  69  Hun,  2.50,  23  N.  Y.  Supp.  557.  As  to  general  letter  of  credit  as  oeing 
a  general  offer  resulting  in  a  promise  to  persons  giving  credit  on  the  strength 


48  OFFER  AND   ACCEPTAXCB  (Ch.  2 

that  a  certain  sum  will  be  paid  to  any  person  who  buys  and  uses 
the  remedy,  and  afterwards  contracts  the  disease  it  is  claimed  to 
prevent,  will  become  bound  by  contract  obligation  to  any  person 
who  purchases  and  uses  the  remedy,  and  he  may  recover  the  sum 
promised  if  he  contracts  the  disease.^^ 

Such  a  general  offer  may  be  made  orally.  Thus,  where  a  per- 
son, whose  wife  was  in  a  burning  building,  exclaimed  to  the  by- 
standers generally  that  he  would  give  a  certain  sum  to  any  person 
who  would  bring  out  her  body,  and  a  man  did  so,  it  was  held  that 
he  could  recover  the  sum  promised/® 

Acceptance  and  Revocation 

Offers  of  this  character  cannot  result  in  contract  obligation  un- 
til they  are  accepted  by  an  ascertained  person  by  performing  the 
services.  Before  the  services  are  rendered,  there  is  merely  an  offer, 
which  may  be  revoked.^*  An  acceptance  by  performance  of  the 
services  after  the  offer  has  been  withdrawn  does  not  bind  the  pro- 
poser,^" and  it  even  seems  that  ignorance  of  the  withdrawal  makes 
no  difference,  if  the  withdrawal  was  as  publicly  made  as  the  offer.*^ 
If  no  time  is  stated  within  which  the  offer  is  to  remain  open,  it  will 
lapse  after  the  expiration  of  a  reasonable  time;  that  is,  perform- 
ance of  the  service,  to  constitute  an  acceptance,  must  be  within  a 
reasonable  time  after  the  making  of  the  offer  or  the  last  publica- 
tion thereof.^^ 

of  it,  see  Ex  parte  Asiatic  Banking  Corp.,  2  Ch.  App.  391.  See  "Contracts," 
Dec.  Dig.  (Kev-No.)  §  17;    Cent.  Dig.  §§  112-118. 

iTCarlill  V.  Carbolic  Smoke-Ball  Co.,  [1892]  2  Q.  B.  484.  4  Rep.  176;  Id.. 
[1893]  1  Q.  B.  256.  So,  where  a  person  Invites  arehileets  to  submit  desi^s, 
stating  that  all  who  submit  plans  shall  receive  a  certain  sum.  and  that  the 
one  whose  plans  are  the  best  shall  be  engaged  as  architect,  he  becomes  bound 
to  pay  the  sum  specified  to  all  who  submit  plans,  and,  if  he  adjudges  one  of 
the  plans  the  best,  to  make  that  architect  the  architect  of  the  building. 
Walsh  V.  Association,  16  Mo.  App.  502;  Id.,  90  Mo.  459,  2  S.  W,  842.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  17;    Cent.  Dig.  §§  112-118. 

18  Reif  V.  Paige,  55  Wis.  496,  13  N.  W.  473,  42  Am.  Rep.  731.  And  see 
Hajden  v.  Souger,  56  Ind.  42,  26  Am.  Rep.  1.  See  "Rewards,"  Dec.  Dig. 
(Key-No.)  §§  S-7 ;   Cent.  Dig.  §§  3-7. 

19  Ilarson  v.  Pike.  16  Ind.  140;  Freeman  v.  City  of  Boston,  5  Mete.  (Mass.) 
56;  Cummlngs  v.  Gann,  52  Pa.  484.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
19;    Cent.  Dig.  §§  57-60. 

2  0  Shuey  v.  United  States,  92  U.  S.  73,  23  L.  Ed.  697;  Blggers  v.  Owen.  79 
Ga.  658,  5  S.  E.  193.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  19;  Cent.  Dig. 
§§  57-60. 

21  Shuey  v.  United  States,  92  U.  S.  73,  23  L.  Ed.  697.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  19;    Cent.  Dig.  §§  57-60. 

22  Loring  v.  City  of  Boston,  7  Mete.  (Mass.)  409  (holding  3  years  and  8 
months  more  than  a  reasonable  time) ;  Mitchell  v.  Abbott,  86  Me.  338,  29 
AtL  1118.  25  L.  R.  A.  503,  41  Am.  St.  Rep.  559  (holding  12  years  more  than 


§    25)  OFFERS   TO    THE    PUBLIC   GENERALLY  49 

Performance  of  Services  in  Ignorance  of  Offer — Motive 

Suppose  that  the  person  performing  the  service  does  not  know  of 
the  offer,  or  does  not  realize  all  its  terms,  does  he  thereby  accept 
the  offer  and  acquire  a  right  to  the  reward?  In  a  leading  English 
case  a  reward  had  been  offered  by  the  defendant  for  information 
which  was  supplied  by  the  plaintiff,  but  not  with  a  view  to  the  re- 
ward. The  report  of  the  case  does  not  show  that  the  plaintiff  was 
unaware  of  the  offer;  the  only  point  which  seems  to  have  been 
raised  being  that  the  reward  was  not  the  motive  which  induced  the 
plaintiff  to  supply  the  information.  The  court  held  that  the  motive 
was  immaterial,  and  that  "there  was  a  contract  with  the  person 
who  performed  the  condition  mentioned  in  the  advertisement."  '*' 

In  this  country,  some  courts,  influenced  in  large  measure  by  a 
misconception  of  the  point  decided  in  Williams  v.  Carwardine,  have 
held  that  ignorance  of  the  offer  does  not  prevent  a  recovery  of  the 
reward  by  the  person  performing  the  services.^*  The  better  rule, 
however,  and  that  supported  by  the  weight  of  authority,  is  that  the 
reward  may  not  be  recovered  by  one  who  performs  the  services 
in  ignorance  of  the  offer.^"  "To  the  existence  of  a  contract,"  it 
was  said  in  the  leading  American  case,"  "there  must  be  mutual  as- 
sent, or,  in  another  form,  offer  and  consent  to  the  offer.  The  mo- 
tive inducing  consent  may  be  immaterial,  but  the  consent  is  vital. 
Without  that,  there  is  no  contract.  How,  then,  can  there  be  con- 
sent or  assent  to  that  of  which  the  party  has  never  heard?"     It  has 

a  reasonable  time) ;  Shaub  v.  Lancaster,  156  Pa.  362,  26  Atl.  1067,  21  L.  R.  A. 
691  (holding  17  years  from  the  first  offer  and  10  years  from  the  last  publi- 
cation more  than  a  reasonable  time).  In  In  re  Kelly,  39  Conn.  159,  it  was 
held  that  the  offer  of  a  reward  for  the  arrest  of  a  person  guilty  of  a  par- 
ticular crime  would  not  lapse  until  prosecution  was  barred  by  the  statute  of 
Umitations.     See  ''Contracts;'  Dec.  Dig.  (Key-No.)  §  20;    Cent.  Dig.  §§  67-70. 

2  3  Williams  v.  Carwardine,  4  Barn.  &  Adol.  621,  6  Eng.  Rul.  Cas,  133.  See 
"Contracts,"  Dec.  Dig.  [Key-No.)  §  22;  Cent.  Dig.  §§  82-92;  "Rewards,"  Dec. 
Dig.  (Key-No.)  §§  3-7;    Ceyit.  Dig.  §§  3-7. 

24Dawkins  v.  Sappington,  26  lud.  199;  Russell  v.  Stewart,  44  Vt  170; 
Auditor  v.  Ballard,  9  Bush  (Ky.)  572,  15  Am.  Rep.  728;  Eagle  v.  Smith,  4 
Houst.  (Del.)  293:  Crawshaw  v.  City  of  Roxbury,  7  Gray  (Mass.)  377;  Ever- 
man  v.  Hyman,  26  Ind.  App.  165,  28  N.  E.  1022,  84  Am.  St.  Rep.  284.  See 
'^Rcnnrds,"  Dec.  Dig.  (Key-No.)  §  7;    Cent.  Dig.  §  7. 

25  Fitch  V.  Snedaker,  38  N.  Y.  248,  97  Am.  Dec.  791;  Ilowland  v.  Lounds, 
51  N.  Y.  604,  10  Am.  Rep.  654 ;  Marvin  v.  Treat,  37  Conn.  96,  9  Am.  Rep.  307 ; 
Stamper  v.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dec.  296;  Williams  v. 
P.ailway  Co.,  191  111.  610,  61  N.  E.  456,  85  Am.  St.  Rep.  278.  BROADNAX  v. 
LEDBETTER,  100  Tex.  375,  99  S.  W.  1111,  9  L.  R.  A.  (N.  S.)  1057,  Throck- 
morton Cas.  Contracts,  27.  See  "Rewards,"  Dec.  Dig.  (Key-No.)  S  7;  Cent. 
Dig.  §  7. 

26  Fitch  V.  Snedaker,  38  N.  Y.  218,  97  Am.  Dec.  791.  iSee  "Rewards,"  Dec. 
Dig.  (Key-No.)  §  7;    Cent.  Dig.  §  7. 

Clark  Cont.(3u  Ed.) — 4 


50  OFFER  AND  ACCEPTANCE  (Ch.  2 

even  been  held,  contrary  to  the  point  actually  decided  in  Williams 
V.  Carwardine,  that  the  motive  in  performing  the  services  is  ma- 
terial, and  that  there  must  at  the  time  be  an  intent  to  claim  the 
reward,  as  well  as  knowledge  that  it  is  offered. ^^ 


OFFER  AS  REFERRING  TO  LEGAL  RELATIONS 

26.  The  offer  must  be  intended  to  create,  and  be  capable  of  creat- 
ing, legal  relations. 

Intention  to  Create  Legal  Relations 

In  order  that  an  offer  or  proposal  may  be  turned  into  a  binding 
contract  by  acceptance,  it  must  be  made  in  contemplation  of  legal 
consequences.  A  mere  statement  of  intention,  for  instance,  made  in 
the  course  of  conversation,  will  not  result  in  a  binding  promise, 
though  acted  upon  by  the  party  to  whom  it  was  made.^^  Thus, 
where  a  father  said  to  a  man  that  he  would  give  a  certain  sum  to 
him  who  married  his  daughter  with  his  consent,  and  the  man 
married  her,  and  sued  for  the  money,  it  was  held  that  he  could  not 
recover,  as  it  was  not  reasonable  that  a  man  "should  be  bound  by 
general  words  spoken  to  excite  suitors."  ^®  Nor  will  services  ren- 
dered for  another  and  accepted  by  him  place  him  under  a  contrac- 
tual obligation  to  pay  for  them,  where  payment  therefor  was  not 
expected  nor  intended.^" 

2  7  Hewitt  V.  Anderson,  56  Cal.  476,  38  Am.  Rep.  65.  See  "Reicards,"  Dec. 
Dig.  (Eey-No.)  §  7;    Cent.  Dig.  §  7. 

2  8  Week  V.  Tibold,  Rolle,  Abr.  6;  Randall  v.  Morgan,  12  Ves.  67;  Stamper 
V.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dec.  290 ;  Stagg  v.  Compton,  81  Ind. 
171 ;  Erwln  v.  Erwin,  25  Ala.  236 ;  Carson  v.  Lucas,  13  B.  Mon.  (Ky.)  213 ; 
Henderson  Bridge  Co.  v.  McGrath,  134  U.  S.  260,  10  Sup.  Ct.  730,  .33  L.  Ed. 
934;  Kirksey  v.  Kirksey,  8  Ala.  131;  Lakeside  Land  Co.  v.  Dromgoole,  89 
Ala.  505,  7  South.  444 ;  Thruston  v.  Thornton,  1  Cush.  (Mass.)  89 ;  Higgins 
V.  Lessig,  49  111.  App.  459.  Statements  by  a  married  child  that  she  intends 
to  pay  her  parents  for  support,  made  to  third  persons,  result  in  no  contract 
on  her  part.  Perkins  v.  Westcoat,  3  Colo.  App.  338,  33  Pac.  139.  The  rule 
above  stated  applies  to  offers  of  reward  made  to  the  public  generally.  Stam- 
per V.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dec.  296;  Higgins  v.  Lessig, 
49  111.  App.  459.  See,  also,  Ulrich  v.  Arnold,  120  Pa.  170,  13  Atl.  831.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §§  14,  16;    Cent.  Dig.  §  50. 

29  Week  V.  Tibold,  supra.  And  see  Randall  v.  Morgan,  supra.  See  "Con- 
tracts;' Dec.  Dig.  (Key-No.)  §  16;    Cent.  Dig.  §§  1,9-56. 

8  0  The  fact  that  services  are  rendered  does  not  create  a  liability  on  the 
part  of  the  person  for  whom  they  are  rendered,  even  though  done  at  his  re- 
quest, where  the  circumstances  are  such  as  to  repel  the  inference  that  com- 
pensation was  intended ;  and,  when  performed  merely  from  kindly  or  chari- 
table motives,  the  law  will  not  imply  a  promise  to  pay  for  them.     Cicotte  v. 


§  26)        OFFER  AS  BEFEKKINQ  TO  LEGAL  RELATIONS  51 

On  the  same  footing  stand  engagements  of  pleasure,  or  agree- 
ments which,  from  their  nature,  do  not  admit  of  being  regarded  as 
business  transactions.^^ 

Same — Jest 

Transactions  intended  as  a  joke  or  jest  cannot  result  in  a  con- 
tract, for  the  reason  that  there  is  no  intention  to  contract;  there  is 
no  contemplation  of  legal  consequences.^^ 

Same — Invitations  to  Deal 

Ofifers  which,  by  acceptance,  may  be  turned  into  binding  prom- 
ises, must  be  distinguished  from  offers  which  merely  amount  to  in- 
vitations to  deal.  Illustrations  of  this  arise  where  merchants  send 
out  circulars  offering  goods  for  sale  on  certain  terms,  not  intend- 
ing the  circular  as  an  offer  to  become  binding  on  acceptance,  but 
merely  as  an  invitation  to  persons  to  enter  into  negotiations ;  ^*  or 
where  a  person,  wishing  to  have  work  done,  or  to  buy  goods,  ad- 
vertises for  proposals;**  or  where  a  person  advertises  that  he  will 
sell  goods  at  auction.^"  The  circulars  of  the  merchant,  the  adver- 
tisement for  proposals,  and  the  advertisement  of  the  auction  sale, 
are  mere  declarations  of  intention.  Legal  consequences  are  not  di- 
rectlv  contemplated,  and  no  contract  relation  arises  with  persons 
who  may  send  an  order  for  goods,  or  make  bids,  or  attend  the  auc- 
tion.    The  rule  applies  whenever  it  is  clear  that  a  proposition  was 

Church  of  St.  Anne,  60  Mich.  552,  27  N.  W.  682.  And  see  Covel  v.  Turner, 
74  Mich.  408,  41  N.  W.  1091;'  Gross  v.  Cadwell,  4  Wash.  670,  30  Pac.  1052; 
Sullivan  v.  Latimer.  38  S.  C.  158,  17  S.  E.  701 ;  Everitt  v.  Walker,  109  N.  C. 
129.  13  S.  E.  860;  Collyer  v.  Collyer,  113  N.  Y.  442,  21  N.  E.  114.  See,  also, 
auie,  iJ.  20,  and  cases  cited.  tSee  "Contracts,"  Dec.  Dig.  (Key-No.)  §  16;  Cent. 
^W.  a  49-50. 

81  Anson,  Cont.  (4th  Ed.)  19;    ante,  p.  5. 

8  2  MeClurg  v.  Terry,  21  N.  J.  Eq.  225;  Armstrong  v.  McGhee,  Add.  (Pa.) 
261 ;  Keller  v.  Holderman,  11  Mich.  248,  83  Am.  Dec.  737 ;  Bruce  v.  Bishop, 
43  Vt.  101.  Marriage  ceremony  performed  in  jest,  but  by  a  person  duly  au- 
thorized. McClurg  V.  Terry,  supra.  See  ''Contracts,"  Dec.  Dig.  (Eey-No.)  § 
16;    Cent.  Dig.  §§  I,9-r,6. 

3  3  CHEROKEE  TANNING  EXTRACT  CO.  v.  WESTERN  UNION  TELE- 
GRAPH CO.,  143  N.  C.  370,  55  S.  E.  777,  118  Am.  St.  Rep.  806,  Throckmorton 
Cas.  Contracts,  31 ;  Spencer  v.  Harding,  L.  R.  5  C.  P.  501 ;  Moulton  v.  Ker- 
shaw, 59  Wis.  316,  18  N.  W.  172,  48  Am.  Rep.  516;  Lincoln  v.  Preserving  Co., 
132  Mass.  129;  Knight  v.  Cooley,  34  Iowa,  218;  Topliff  v.  McKendree,  88 
Mich.  148,  50  N.  W.  109;  Allen  v.  Kirwan,  159  Pa.  612,  28  Atl.  495;  Smith  v. 
Weaver,  90  111.  392;  Zeltner  v.  Irwin,  25  App.  Div.  228,  49  N.  Y.  Supp.  337. 
See  "Sales,"  Dec.  Dig.  (Key-No.)  §§  22,  23;    Cent.  Dig.  §§  S9-/,S. 

84  Howard  v.  Industrial  School,  78  Me.  230,  3  Atl.  657;  Leskle  v.  Ilasel- 
stine,  155  Pa.  98,  25  Atl.  880;  Topping  v.  Swords,  1  E.  D.  Smith  (N.  Y.)  609. 
Soe  "Contracts:'  Dec.  Dig.  {Kei/-No.)  §  17;    Cent.  Dig.  §§  112-118. 

86  Harris  v.  Nickerson,  L.  R.  8  Q.  B.  286.  See  "Sales,"  Deo.  Dig.  {Key 
No.)  §§  22,  23;   Cent.  Dig.  §§  S9-f,S. 


52  OFFER  AND  ACCEPTANCE  (Ch. 2 

intended  merely  as  an  invitation  to  deal,  and  not  as  an  offer  to  be- 
come binding  on  acceptance.^* 

Same — Incomplete  Negotiations 

Similar  to  these  cases  are  those  in  which  the  parties  are  carrying 
on  negotiations,  and  have  not  yet  come  to  an  agreement.  So  long 
as  the  negotiations  are  incomplete,  there  is  no  contract.'^  "An 
agreement  to  be  finally  settled  must  comprise  all  the  terms  which 
the  parties  intend  to  introduce  into  the  agreement.  An  agreement 
to  enter  into  an  agreement  upon  terms  to  be  afterwards  settled  be- 
tween the  parties  is  a  contradiction  in  terms.  It  is  absurd  to  say 
that  a  man  enters  into  an  agreement  till  the  terms  of  that  agree- 
ment are  settled."  *® 

So,  also,  if  the  parties  come  to  an  agreement  as  to  terms,  but 
with  the  intention  that  their  agreement  is  to  be  reduced  to  writing, 
and  that  they  are  not  to  be  bound  until  this  is  done,  there  is  no  con- 
tract until  the  writing  is  drawn  up  and  assented  to  by  both  as  their 

3  6  CHEROKEE  TANNING  EXTRACT  CO.  v.  WESTERN  UNION  TELE- 
GRAPH CO.,  143  N.  C.  376,  55  S.  E.  777,  118  Am.  St.  Rep.  806,  Throckmorton 
Gas.  Contracts,  31.  In  Moulton  v.  Kershaw,  59  Wis.  316,  18  N.  W.  172,  48 
Am.  Rep.  516,  the  defendants  wrote  plaintiff:  "We  are  authorized  to  offer 
Michigan  fine  salt,  in  full  carload  lots  of  80  to  95  bbls.,  delivered  at  your 
city,  at  85c.  per  bbl.  ♦  *  ♦  Shall  be  pleased  to  receive  your  order," — and 
the  plaintiff  at  once  replied,  ordering  2,000  barrels,  but  the  defendants  re- 
fused to  fill  the  order.  The  court  held  that  defendants'  letter  was  a  simple 
notice  that  they  were  in  a  condition  to  supply  salt  for  the  price  named,  and 
an  invitation  to  deal  with  them,  and  not  an  offer  which  plaintiff  could 
change  into  a  binding  promise  by  his  order.  See,  also,  Beaupr6  v.  Telegraph 
Co.,  21  Minn.  155;  Kinghorne  v.  Telegraph  Co.,  U.  C.  18  Q.  B.  60;  Lyman 
V.  Robinson,  14  Allen  (Mass.)  254;  Smith  v.  Gowdy,  8  Allen  (Mass.)  566; 
Schenectady  Stove  Co.  v.  Holbrook,  101  N.  Y.  45,  4  N.  B.  4 ;  Harvey  v.  Facey, 
1  Rep.  428;  Id.,  [1893]  App.  Gas.  .552;  Patton  v.  Arney,  95  Iowa,  664,  64 
N.  W.  635.  Cf.  Keller  v.  Ybarru,  3  Cal,  147 ;  College  Mill  Co.  v.  Fidler  (Tenn. 
Ch.)  58  S.  W.  382 ;  Zeltner  v.  Irwin,  25  App.  Div.  228,  49  N.  Y.  Supp.  337 
[reversing  21  Misc.  Rep.  13,  46  N.  Y.  Supp.  852].  See  "Auctions  and  Auction- 
eers;' Dec.  Dig.  (Key-No.)  §§  7,  8;    Cent.  Dig.  §§  20-^0. 

37  Lyman  v.  Robinson,  14  Allen  (Mass.)  242;  Schenectady  Stove  Co.  v.  Hol- 
brook, 101  N.  Y.  45,  4  N.  E.  4;  Bean  v.  Clark  (C.  C.)  30  Fed.  225;  Templetou 
v.  Wile  (City  Ct.)  3  N.  Y.  Supp.  9;  Commercial  Tel.  Co.  v.  Smith,  47  Hun 
(N.  Y.)  494;  Morris  v.  Brightman,  143  Mass.  149,  9  N.  E.  512;  Wardell  v. 
Williams,  62  Mich.  50,  28  N.  W.  796,  4  Am.  St.  Rep.  814;  Shaw  v.  Glass 
Works,  52  N.  J.  Law,  7,  18  Atl.  096;  Whiteford  v.  Hitchcock,  74  Mich.  208, 
41  N.  W.  898;  Gates  v.  Nelles,  62  Mich.  444,  29  N.  W.  73;  Canning  v.  Far- 
quhar,  16  Q.  B.  Div.  727,  .55  L.  J.  Q.  B.  225;  Strong  &  Trowbridge  Co.  v. 
H.  Baars  &  Co.,  60  Fla.  253,  54  South.  92.  And  see  ante,  p.  35.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §§  ^9-56. 

3  8  Ridgway  v.  Wharton,  6  H.  L.  Gas.  268.  And  see  Shepard  v.  Carpenter, 
54  Minn.  153,  55  N.  W.  906;  Sibley  v.  Felton,  156  Mass.  273,  31  N.  E.  10; 
Strobridge  Lithographing  Co.  v.  Randall,  73  Fed.  619,  19  G.  a  A-  611;   St. 


§    26)  OFFER   AS   BEFEERINQ   TO    LEGAL   RELATIONS  53 

agreement.*®  If  they  come  to  a  final  agreement  as  to  terms,  it  may, 
indeed,  bind  them,  though  they  intend  to  reduce  the  terms  into 
writing  for  the  purpose  of  becoming  bound  in  a  more  formal  man- 
ner, or  of  preserving  a  memorial  of  the  terms,  or  for  any  purpose 
other  than  that  of  making  the  writing  exclusively  their  agree- 
ment.*" The  question  is  whether  they  intend  legal  consequences 
before  the  formal  written  evidence  of  their  agreement  is  executed. 
If  they  do  not,  there  is  no  contract  until  this  is  done;  but,  if  they 
do  intend  to  be  bound  without  regard  to  the  writing,  there  is  a  con- 
tract.*^ The  question  is  one  of  fact;  but  the  circumstance  that 
they  do  intend  a  subsequent  writing  to  be  drawn  up  is  said  to  be 
strong  evidence  that  they  do  not  intend  to  be  bound  by  the  prelim- 
inary agreement.*^ 

Same — Delivery 

It  is  sometimes  said  that  delivery  is  necessary  to  give  effect  to  a 
written  contract,  and  this  is  true  where  by  the  agreement  of  the 
parties  it  is  not  to  take  effect  until  delivered.*^  Delivery  in  this 
sense,  however,  is  not  a  necessary  element  of  the  contract  imposed 

Louis  &  S.  F.  R.  Co.  v.  Gorman,  7»  Kan.  643,  100  Pac.  647,  28  L.  R.  A.  (N.  S.) 
€37.     -See  "Contracts,''  Dec:  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §§  1,9-56. 

3  9  Ocala  Cooperage  Co.  v.  Florida  Cooperage  Co.,  59  Fla.  394,  52  South.  13. 
See,  also,  ante,  p.  .'Hi.  See  "ContracU."  Dee.  Dig.  (Key-yo.)  §  32;  Cent.  Dig. 
i  159. 

*o  Leake,  Cont.  98;  Ridgway  t.  Wharton,  6  H.  L.  Cas.  268;  Green  v.  Cole 
(Mo.  Sup.)  24  S.  W.  1058;  Lewis  v.  Brass,  L.  R.  3  Q.  B.  Div.  667;  Crossley 
V.  Maycock,  L.  R.  18  Eq.  180;  Sanders  v.  Fruit  Co.,  144  N.  Y.  209,  39  N.  E. 
75,  29  L.  R.  A.  431,  43  Am.  St.  Rep.  757;  C.  C.  Emerson  &  Co.  v.  Stevens 
Grocer  Co.,  95  Ark.  421,  1.30  S.  W.  541;  Western  Roofinc:  Tile  Co.  v.  Jones. 
26  Okl.  209.  109  Pnc.  225.  Ann.  Cas.  1912B.  127.  And  see  ante,  p.  36.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  S2;  Cent.  Dig.  §  159. 

*i  Winn  V.  Bull,  2  Ch.  Div.  29;  Fowle  v.  Freeman,  9  Ves.  351;  Gibbins  v. 
Asylum  District,  11  Beav.  1;  Hey  worth  v.  Knight,  17  C.  B.  (N.  S.)  293;  Ros- 
Riter  V.  Miller,  5  Ch.  Div.  648;  Commercial  Tel.  Co.  v.  Smith,  47  Hun  (N.  Y.) 
494;  Allen  v.  Chouteau,  102  Mo.  309,  14  S.  W.  869;  Hodges  v.  Sublett,  91 
Ala.  588,  8  South.  800;  Lawrence  v.  Railroad  Co.,  84  Wis.  427,  54  N.  W. 
797;  Mississippi  &  D.  S.  S.  Co.  v.  Swift,  80  Me.  248,  29  Atl.  10(.i3,  41  Am.  St. 
Rep.  545;  Edge  Moore  Bridge  Works  v.  Bristol  County,  170  Mass.  528,  49 
N.  E.  918.  See,  also,  ante,  p.  36.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  %  32; 
Cent.  Dig.  §  159. 

*2  Leake,  Cont.  98;  Ridgway  v.  Wharton,  6  H.  L.  Cas.  268.  See  "Contracts," 
Dec.  Dig.  (Kev-No.)  §§  28,  29;  Cent.  Dig.  §§  133-143. 

*3  American  Copying  Co.  v.  Muleski,  138  Mo.  App.  419,  122  S.  W.  384;  Ligou 
v.  Wharton  (Tex.  Civ.  App.)  120  S.  W.  930.  If  a  contract  is  placed  in  escrow, 
to  be  delivered  upon  the  happening  of  a  certain  event,  its  delivery  in  violation 
of  the  condition  does  not  give  it  effect,  because  there  is  no  meeting  of  minds 
or  common  intention  to  be  bound.  Carpenter  v.  Carpenter,  141  Wis.  544.  124 
N.  W.  488.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  42;  Cent.  Dig.  §§  201-21 4 ; 
"Escrows,"  Dec.  Dig.  (Key-No.)  %  Ik;  Cent.  Dig.  §§  11-20. 


54  OFFER   AND   ACCEPTANCE  (Ch.  2 

by  law,  but  rather  an  act  evidencing'  the  final  agreement  of  the  par- 
ties. It  would  be  equally  competent  for  them  to  agree  that  the 
contract  should  become  binding  without  delivery. 

Oifer  as  Capable  of  Creating  Legal  Relations — DeHniteness  and  Cer- 
tainty 

An  offer  or  proposal  must  be  capable  of  creating  legal  relations, 
or  no  contract  can  result.  An  agreement  cannot  create  an  obliga- 
tion, or  legal  relations,  unless  it  is  capable  of  being  enforced  by 
the  courts;  and,  as  we  have  seen,  creation  of  an  obligation  is  es- 
sential. 

It  follows  that,  to  result  in  a  contract,  the  agreement  must  be 
sufficiently  definite  and  certain  to  enable  the  court  to  collect  from  it 
the  full  intention  of  the  parties,  for  the  court  cannot  make  an  agree- 
ment for  them.**  The  parties  may  have  come  to  a  real  agreement, 
but  they  must  take  the  chances  of  not  having  made  it  intelligible.*"^ 
It  is  generally  said  that  the  contract  or  the  agreement  or  the  prom- 
ise must  be  certain,  but  it  is  the  same  thing  to  say  that  the  oft'er 
must  be  certain.  An  uncertain  offer  is  sometimes  apparently  rem- 
edied by  its  acceptance,  but  this  is  not  really  so,  for  an  acceptance 
must  be  identical  with  the  terms  of  the  offer.  If  it  varies  from 
them,  as  it  must  in  order  to  remedy  uncertainty  in  the  offer,  it  is 
not  an  acceptance,  but  a  counter  offer. 

The  rule,  then,  is  that  the  offer  must  not  be  so  indefinite  as  to 
make  it  impossible  for  the  court  to  say  what  was  promised.*^  Thus, 
where  a  person  bought  a  horse,  and  promised  that,  if  it  was  lucky 
to  him,  he  would  give  a  certain  additional  sum,  "or  the  buying  of 
another  horse,"  it  was  held  that  the  promise  was  too  loose  and 

44  Thomson  v.  Gortner,  73  Md.  474.  21  Atl.  371;  Marble  v.  Oil  Co.,  169 
Mass.  553,  48  N.  E.  785 ;  In  re  Purves'  Estate,  196  Pa.  4.38,  46  Atl.  369 ;  Faulk- 
ner V.  Drug  Co.,  117  Iowa,  120,  90  N.  W.  585;  Butler  v.  Kemmerer,  218  Pa. 
242,  67  Atl.  332  (collecting  cases)  ;  Northrup  v.  Colter,  150  Mo.  App.  639,  131 
S.  W.  364.  Uncertainty  as  to  price  or  terms  of  payment  on  sale  of  land. 
George  v.  Conhaim,  33  Minn.  338,  37  N.  W.  791 ;  Smoyer  v.  Roth  (Pa.  Sup.) 
13  Atl.  191 ;  Everett  v.  Dilley,  39  Kan.  73,  17  Pac.  661.  See  "Contracts"  Dec. 
Dig.  (Key-No.)  §  9;  Cent.  Dig.  §§  10-20. 

4  5  Pol.  Cont.  42. 

46  CHEROKEE  TANNING  EXTRACT  CO.  v.  WESTERN  UNION  TELE- 
GRAPH CO.,  143  N.  C.  376,  55  S.  E.  777,  118  Am.  St.  Rep.  806,  Throckmorton 
Cas.  Contracts,  31;  Guthing  v.  Lynn,  2  Barn.  &  Adol.  232;  Sherman  v.  Kits- 
miller,  17  Serg.  &  R.  (Pa.)  45 ;  Freed  v.  Mills,  120  Ind.  27,  22  N.  E.  86 ;  Tliom- 
son  V.  Gortner,  73  Md.  474,  21  Atl.  371 ;  Erwin  v.  Erwin,  25  Ala.  236 ;  Northrup 
V.  Colter,  150  Mo.  App.  6.39,  131  S.  W.  364;  Gray  v.  Toledo,  St.  L.  &  W. 
R.  Co.,  143  Mo.  App.  251,  128  S.  W.  227;  Harvey  v.  Facey,  L.  R.  [1893]  App. 
Cas.  552.     See  "Contracts,"  Dec.  Dig.  (Ketj-No.)  §  9;  Cent.  Dig.  §§  10-20. 


g  26)        OFFER  AS  REFERRING  TO  LEGAL  RELATIONS  55 

vague  to  be  considered  in  a  court  of  law.*^  And  so,  where  a  per- 
son agrees  to  perform  services  for  such  remuneration  as  shall  be 
deemed  right,  or  for  such  wages  as  his  employer  shall  deem  right 
or  reasonable,  or  for  "good  wages,"  it  is  held  that  there  is  not  a 
sufficiently  definite  promise  of  payment  to  be  capable  of  enforce- 
ment.** 

Same — "Id  Certum  est  Quod  Certiim  Reddi  Potest" 

This  rule,  however,  is  subject  to  the  maxim,  "Id  certum  est  quod 
certum  reddijpotest."  **  For  this  reason  an  offer  to  sell  goods  need 
nor^cessarily  specify  the  amount  that  may  be  ordered,  but  may 
leave  it  for  the  person  to  whom  the  offer  is  made  to  specify  the 
amount  in  his  acceptance.  If  this  is  the  intention  of  the  parties,  the 
acceptance  concludes  the  contract,  and  does  not  amount  to  a  coun- 
ter proposal  necessary  to  be  accepted.'^"  The  intention  is  import- 
ant here,  in' order  to  distinguish  these  cases  from  those  in  which  it 
is  held  that  the  acceptance  does  not  conclude  a  contract  because  the 
proposer  did  not  intend  to  affect  his  legal  relations,  but  merely  to 

*7  Guthing  V.  Lynn,  supra.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  9;  Cent. 
Dig.  §§  10-20. 

*8  Taylor  v.  Brewer,  1  Maule  &  S.  290;  Roberts  v.  Smith,  4  Hurl.  &  N.  315; 
Fairplay  School  Tp.  v.  O'Neal,  127  Ind.  95,  26  N.  E.  6S6.  But  see  Caldwell  v. 
School  bist.  (C.  C.)  55  Fed.  372;  Henderson  Bridge  Co.  v.  McGrath,  134  U. 
S.  260,  10  Sup.  Ct.  730,  33  L.  Ed.  934.  The  following  promises  have  been  held 
void  for  uncertainty:  To  give  a  person  a  house,  and  provide  for  her  at 
promisor's  death,  if  she  would  live  with  him.  Wall's  Appeal,  111  Pa.  460,  5 
Atl.  220,  56  Am.  Rep.  2S8.  To  let  a  person  retain  possession  of  property  on 
his  paying  the  same  rent  the  promisor  "might  be  able  to  obtain  from  other 
parties."  Gelston  v.  Sigmund,  27  Md.  334.  That  a  person  should  have 
preference  in  renting  of  property  so  long  as  It  should  be  rented  for  store. 
Delashmutt  v.  Thomas,  45  Md.  140.  To  take  a  house  "if  put  into  thorough 
repair,"  and  If  the  drawing  rooms  were  "handsomely  decorated,  according 
to  the  present  style."  Taylor  v.  Portington,  7  De  Gex,  M.  G.  328.  To  sell 
land,  reserving  "the  necessary  land  for  making  a  railway."  Pearce  v.  Watts, 
20  Eq.  492.  Agreement  by  which  a  person  is  to  work  in  a  mine,  and  receive 
a  certain  sum  per  ton  on  all  ore  produced,  as  long  as  the  mine  can  be  made 
to  pay.  Davie  v.  Mining  Co.,  93  Mich.  491,  53  N.  W.  625,  24  L.  R.  A.  357. 
Promise  to  take  note  for  certain  sum,  without  specifying  terms.  Van  Schaick 
V.  Van  Buren,  70  Hun,  575,  24  N.  Y.  Supp.  306.  On  order  for  goods  which 
does  not  state  the  quantity,  quality,  or  price  to  be  paid.  Price  v.  Stipek, 
39  Mont.  426,  104  I'ac.  195.  A  promise  to  divide  a  profit,  if  any  Is  made, 
on  a  very  liberal  basis.  Butler  v.  Kemmerer,  218  Pa.  242,  67  Atl.  3-32.  See 
"Contracts"  Dec.  Dig.  {Key-yo.)  §  9;  Cent.  Dig.  §S  10-20. 

*8  Parker  v.  Pettit,  43  N.  J.  Law,  512;  Miller  v.  Kendig,  55  Iowa,  174,  7 
N.  W.  500;  Thompson  v.  Steveu.s,  71  Pa.  161.  See  "Contracts,"  Dec.  Dig. 
(Key-So.)  §  9;  Cent.  Dig.  §§  10-20. 

60  Dambmann  v.  Lorentz,  70  Md.  380,  17  Atl.  389,  14  Am.  St  Rep.  364.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  9;  Cent.  Dig.  §§  10-20. 


56  OFFER  AND  ACCEPTANCH  (Ch.  2 

invite  negotiations.'*  For  the  same  reason  it  is  not  necessary,  in 
offering  to  sell  goods,  to  name  the  price,  for,  if  no  price  is  specified,^ 
a  seasonable  price  will  be  implied.  Other  illustrations  of  the  appli- 
cation of  this  rule  are  given  below.''* 

Same — Capacity  of  Parties — form — Consideration — Legality  of  Ob- 
ject 
In  order  that  an  offer  be  capable  of  creating  legal  relations,  (a) 
it  must  be  made  by  and  to  a  party  capable  of  contracting;  (b)  it 
must  be  made  in  the  form  prescribed  by  law ;  (c)  if  it  is  to  be  ac- 
cepted by  the  giving  of  a  promise,  it  must  be  a  consideration  for 

01  Ante,  p.   51. 

5  2  The  following  contracts  have  been  held  sufficiently  certain:  Contract 
making  extent  of  promisor's  liability  such  as  may  be  imposed  by  a  certain 
statute.  Town  of  Hamden  v.  Merwin,  54  Conn.  418,  8  Atl.  670.  A  promise  ta 
buy  all  the  supplies  of  a  certain  kind  the  promisor  may  need.  Lenz  v.  Brown, 
41  Wis.  172;  Levey  v.  Railroad  Co.,  4  Misc.  Rep.  415,  24  N.  Y.  Supp.  124; 
Minnesota  Lumber  Co.  v.  Coal  Co.,  IGO  111.  85,  43  N.  E.  775,  31  L.  R.  A.  529; 
Hickey  v.  O'Brien,  123  Mich.  611,  82  N.  W.  241,  49  L.  R.  A.  594,  81  Am.  St. 
Rep.  227.  See  post,  p.  149..  A  promise  to  sell  all  the  future  produce  of  a 
certain  vineyard  the  promisee  may  wish.  Keller  v.  Ybarru,  3  Cal.  147.  And 
see  Bates  v.  Childers,  5^  N.  M.  62,  20  Pac.  164 ;  Booske  v.  Ice  Co.,  24  Fla.  550, 
5  South.  247;  McCall  Co,  v.  Icks,  107  Wis.  232,  83  N.  W.  300.  Deflnitenes* 
as  to  territory  in  which  party  shall  have  exclusive  right  to  sell  goods, — 
"in  D.  and  the  territory  tributary  thereto."  Kaufman  v.  Manufacturing  Co., 
78  Iowa,  679,  43  N.  W.  612,  16  Am.  St.  Rep.  462.  Cf.  Hauser  v.  Harding, 
126  N.  C.  295,  35  S.  E.  586.  Describing  a  party  as  "Mr.  Lee"  does  not  render 
the  contract  uncertain,  as  it  may  be  explained  by  parol.  Lee  v.  Cherry,  85 
Tenn.  707,  4  S.  W.  835,  4  Am.  St.  Rep.  800.  Promise  to  erect  "a  good  steam 
sawmill."  Fraley  v.  Bentley,  1  Dak.  25,  46  N.  W.  506.  Sale  of  a  stock  of 
merchandise,  "all  soiled  or  damaged  goods  at  valuation."  Sergeant  v.  Dwyer, 
44  Minn.  309,  46  N.  W.  444.  Promise  to  employ  a  person  "for  12  months 
commencing  not  later  than  the  15th  of  July,  possibly  the  1st  of  July,  the  date 
to  be  fixed  by"  the  promisee.  Troy  Fertilizer  Co.  v.  Logan,  96  Ala.  619,  12 
South.  712.  Agreement  to  furnish  a  person  with  "steady  and  permanent  em- 
ployment." Pennsylvania  Co.  v.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am. 
St.  Rep.  289.  See,  also,  Carnig  v.  Carr,  167  Mass.  544,  46  N.  E.  117,  35 
L.  R.  A.  512,  57  Am.  St.  Rep.  488.  Agreement  to  furnish  a  certain  number  of 
car  loads  of  lumber,  a  car  load  varying  from  35,000  to  60,000  feet.  Indianapo- 
lis Cabinet  Co.  v.  Herrmann,  7  Ind.  App.  462,  34  N.  E.  579.  Sale  of  nine 
walnut  trees  standing  on  the  vendor's  land,  marked  when  the  sale  is  made. 
Carpenter  v.  Medford,  99  N.  C.  495,  6  S.  E.  785,  6  Am.  St.  Rep.  535.  Con- 
tract with  provision  that  it  should  be  renewed  for  further  term  if  plaintiff 
succeeded  in  doing  such  a  business  as  defendant  might  "reasonably  expect." 
Worthington  v.  Beeman,  91  Fed.  232,  33  C.  C.  A.  475.  Contract  providing 
for  a  "reasonable  compensation."  Wehuer  v.  Bauer  (C.  C.)  160  Fed.  240, 
Contract  to  pay  a  sum  which  will  be  "right"  or  "satisfactory."  Silver  v. 
Graves,  210  Mass.  26,  95  N.  E.  948.  Contract  to  pay  "a  fair  and  equitable 
share  of  the  net  profits"  of  a  business.  Noble  v.  Jof5eph  Burnett  Co.,  208 
Mass.  75,  94  N.  E.  289.  See  "Contracts,"  Dec.  Dig.  (Eey-No.)  §  9;  Cent.  Dig. 
§§  10-20. 


§  26)        OFFER  AS  REFERRINQ  TO  LEGAL  RELATIONS  57 

the  promise ;  and,  if  it  is  an  offer  of  a  promise,  the  act,  forbearance, 
or  promise  asked  in  return  must  be  a  consideration ;  and  (d)  the 
act  or  forbearance  done  or  contemplated  must  be  lawful.  These 
matters  will  be  discussed  in  subsequent  chapters,  dealing  with  the 
capacity  of  parties,  form,  consideration,  and  legality  of  the  object 
of  contracts. 


58  CONTKACTS   UNDER  SEAL  (Ch.  3 


CHAPTER  III 

CLASSIFICATION  OF  CONTRACTS— CONTRACTS  UNDER  SEAL  AND 
CONTRACTS  OF  RECORD 

27.  Classification  of  Contracts. 

28.  Contracts  of  Record. 

29.  Contracts  Under  Seal. 

30-32.     How  Contracts  Under  Seal  are  Mada 

33.  Characteristics  of  Contract  Under  SeaL 

34.  Necessity  for  Contract  Under  Seal. 

Ill  the  last  chapter  we  dealt  with  the  mode  in  which  the  common 
intention  of  the  parties  must  be  communicated,  and  showed  how  it 
must  refer  to  legal  relations,  in  order  that  it  may  form  the  basis  of 
a  contract.  It  is  not  enough,  however,  that  the  common  intention 
of  the  parties  be  communicated  in  the  mode  we  have  described,  and 
that  the  parties  intend  legal  consequences.  Most  systems  of  law 
require  some  further  evidence  of  the  intention  of  the  parties,  with- 
out which  mere  intention  will  not  avail  to  create  an  obligation  be- 
tween them.  In  our  law  this  evidence  is  supplied  by  form  and  con- 
sideration. Sometimes  one,  sometimes  the  other,  and  sometimes 
both  are  required  to  render  a  contract  enforceable.  By  "form"  is 
meant  some  peculiar  solemnity  attaching  to  the  expression  of  agree- 
ment ;  by  "consideration,"  some  gain  to  the  party  making  the  prom- 
ise, arising  from  the  act  or  forbearance,  given  or  promised,  of  the 
promisee,  or  some  detriment  suffered  by  the  promisee.^ 


CLASSIFICATION  OF  CONTRACTS 

27.  Contracts  are  divided  into — 

(a)  Contracts  dependent  for  their  validity  upon  their  form  alone, 

or  strictly  formal  contracts.     These  are: 

(1)  Contracts  of  record. 

(2)  Contracts  under  seal. 

(b)  Simple  or  parol  contracts,  which  may  be  divided  into — 

(1)   Such  as  are  dependent  for  their  validity  both  on  their 

form  and  on  the  presence  of  consideration.     These 

.    are  contracts  not  under  seal,  nor  of  record,  but  which 

are  required  by  law  to  be  in  writing,  either  with  or 

without  a  particular  form. 

1  Anson,  Cont.  (8th  Ed.)  43.  The  student  will  do  well  to  read  in  this  con- 
nection what  Anson  says  in  regard  to  the  history  and  development  of  the 
doctrines  of  form  and  consideration.     See  Anson,  Cont.  (8th  Ed.)  pp.  43-48. 


§    27)  CLASSIFICATION    OF   CONTRACTS  59 

(2)  Such  as  are  dependent  for  their  validity  upon  the  pres- 
ence of  consideration  alone,  no  form  at  all  being  re- 
quired. 

Sir  William  Anson  divides  contracts  into  (a)  formal  contracts, 
or  contracts  dependent  for  their  validity  upon  their  form,  under 
which  he  classes  (1)  contracts  of  record,  and  (2)  contracts  under 
seal ;  and  (b)  simple  contracts,  or  contracts  which  he  declares  to 
be  dependent  for  their  validity  upon  the  presence  of  consideration, 
and  under  which  he  classes  (1)  contracts  required  by  law  to  be 
in  some  form  other  than  under  seal,  and  (2)  contracts  for  which  no 
form  is  required.  This  classification,  however,  has  been  objected 
to  on  the  ground  "that  a  contract  which  the  law  requires  to  be  in 
writing,  such  as  a  promissory  note  or  a  guaranty,  is  as  much  de- 
pendent for  its  validity  upon  the  form,  and  is  as  truly  a  formal 
contract,  as  one  under  seal.  The  latter  requires  only  a  writing  and 
a  seal,  the  former  a  writing  and  a  consideration;  but  the  writing 
in  this  instance  is  just  as  essential  as  is  the  consideration."' 

There  are  two  classes  of  contracts  which  at  common  law  depend 
for  their  validity  upon  their  form  alone.  These  are  contracts  under 
seal  and  contracts  of  record.  They  are  strictly  formal  contracts. 
All  other  contracts  are  called  "simple"  or  "parol"  contracts,  and 
depend  for  their  validity  upon  the  presence  of  consideration.  Some 
of  these  contracts  are  also  required  to  be  in  writing,  as  in  the  case 
of  bills  of  exchange  and  promissory  notes,  in  the  case  of  which  a 
particular  form  is  also  required,  and  contracts  within  the  statute  of 
frauds ;  so  that  they  depend  for  their  validity  upon  their  form  as 
well  as  upon  the  presence  of  consideration.  Simple  contracts,  not 
required  by  the  common  law  or  by  statute  to  be  in  writing,  may  be 
made  by  word  of  mouth,  or  by  conduct,  as  we  have  explained  in 
treating  of  offer  and  acceptance.  They  need  no  particular  form, 
but  depend  for  their  validity  upon  the  presence  of  consideration 
alone. 

We  have,  then,  three  classes  of  contracts:  (a)  Contracts  of  rec- 
ord; (b)  contracts  under  seal;  and  (c)  simple  or  parol  contracts;  or, 
if  we  classify  according  as  a  contract  depends  for  its  validity  upon 
form  or  consideration,  or  both,  we  have:  (a)  Contracts  dependent 
for  their  validity  upon  their  form  alone,  or  (1)  contracts  of  record, 
and  (2)  contracts  under  seal;  (b)  simple  or  parol  contracts,  which 
are  dependent  for  their  validity  both  on  their  form  and  on  the 
presence  of  consideration,  or  contracts  required  to  be  in  writing, 
but  not  under  seal  nor  of  record;  and  (c)  simple  or  parol  contracts, 

>  Brnntlj,  Ck)nt.  3.3. 


GO  CONTRACTS   UNDER   SEAL  (Ch.  3 

for  which  no  form  at  all  is  required,  and  which  depend  for  their 
validity  upon  the  presence  of  consideration  alone. 

All  of  these  contracts,  except  contracts  und6r  seal  and  contracts 
of  record,  are  called  "simple"  or  "parol"  contracts.  The  word 
"parol"  strictly  means  "by  word  of  mouth,"  and  excludes  writing ; 
but  the  term  is  applied  to  all  simple  contracts,  whether  they  are 
merely  oral  or  required  to  be  in  writing.  They  all  require  consid- 
eration, the  only  distinction  being  in  the  fact  that  some  must  be  in 
writing.* 

We  shall  now  deal  with  the  contracts  of  record  and  contracts  un- 
der seal,  and  in  following  chapters  with  those  forms  which  are 
superimposed  upon  simple  contracts,  and  with  consideration,  the 
requisite  common  to  all  simple  contracts. 


CONTRACTS  OF  RECORD 

28.  The  obligations  which  are  styled  "contracts  of  record"  are: 

(a)  Judgments  of  courts  of  record,  whether  entered  by  consent 

or  rendered  in  invitum.    In  the  latter  case,  however,  the 
obligation  is  quasi  contractual,  and  not  contractual. 

(b)  Recognizances,  which  are  obligations,  entered  into  before  a 

court   of  record,  to  do  or  forbear  from  doing  a  certain 
thing  under  a  penalty. 

Judgments 

A  judgment  of  a  court  of  record  awarding  a  sum  of  money  to  one 
of  two  litigants,  either  by  way  of  damages  or  for  costs,  lays  an 
obligation  upon  the  other  to  pay  the  sum  awarded.  The  judgment 
is  entered  upon  the  record  of  the  court,  and  for  this  reason  is  called 
a  "formal"  contract.  This  obligation  may  come  into  existence  as 
the  final  result  of  litigation  when  the  court  pronounces  judgment, 
or  it  may  be  created  by  agreement  between  the  parties  before  litiga- 
tion has  commenced,  or  during  its  continuance.  In  the  latter  case 
there  is  agreement,  and  the  agreement  results  in  obligation.  The 
judgment,  therefore,  has  the  features  of  contract.  In  the  former, 
however,  there  is  no  consent  on  the  part  of  the  person  bound,  and 
the  obligation,  therefore,  is  not  contractual,  but  quasi  contractual.* 

«  RANN  V.  HUGHES,  7  Term  R.  350,  Throckmorton,  Cas.  Contracts,  34 ; 
Whitehill  v.  Wilson,  3  Pen.  &  W.  (Pa.)  405,  24  Am.  Dec.  326;  Perrine  v. 
Cheeseman,  11  N.  J.  Law,  174,  19  Am.  Dec.  3SS ;  Stabler  v.  Cowman,  7  Gill 
&  J.  (Md.)  284.  See  post.  p.  7G.  t^'co  "Contracts,"  Dec.  Dig.  (Key-No.)  §§ 
30-32 ;    Cent.  Dig.  §§  1^-11,7. 

*  O'BRIEN  V.  YOUNG,  95  N.  Y.  428,  47  Am.  Rep.  64,  Throckmorton,  Cas. 
Contracts,  36,  in  whicli  it  is  said,  per  Earl,  J.:    "The  most  Important  elements 


if-' 

I    28)  CONTRACTS   OF   RECORD  61 

Where  the  judgment  is  entered  by  agreement,  the  obligation  results- 
from  a  contract  for  the  making  of  which  certain  formalities  are 
required, — either  a  warrant  of  attorney,  by  which  one  party  gives 
authority  to  the  other  to  enter  judgment  upon  terms  settled,  or  a 
cogn^t  actionem,  by  which  the  one  party  acknowledges  the  right 
ot  the  other  uf  respect  of  the  pending  dispute,  and  then  gives  a 
similar  authority.' 

Characteristics  of  Judgment — Estoppel 

The  characteristics  of  an  obligation  of  this  nature  are  these: 

(1)  Its  terms,  so  long  as  it  has  not  been  regularly  vacated  or 
reversed,  admit  of  no  dispute,  but  are  conclusively  proved  by  a 
production  of  the  record.  The  judgment,  however,  to  be  so  con- 
clusive, must  be  valid.  It  must  have  been  rendered  by  a  court 
having  jurisdiction  of  the  subject-matter  and  of  the  parties,  and 
must  have  been  properly  entered  of  record.*  . 

Same — Merger — Res  Judicata  f 

(2)  As  soon  as  it  is  created,  the  previously  existing  rights  with 
which  it  deals  merge  or  are  extinguished  in  it.  For  instance,  where 
a  person  sues  another  for  breach  of  contract,  or  for  a  civil  injury, 
and  a  judgment  is  entered,  either  by  consent  or  after  trial,  neither 
party  has  any  further  rights  in  respect  of  the  cause  of  action.  The 
judgment  conclusively  settles  their  rights,  and  the  matter  is  said 
to  be  res  judicata.^     Difficulties  arise  in  applying  the  doctrine,  but 

of  a  contract  are  wanting.  There  is  no  aggregatio  mentium.  The  defendant 
has  not  voluntarily  assented.  All  the  authorities  assert  that  the  existence  of 
parties  legally  capable  of  contracting  is  essential  to  every  contract,  and  yet 
they  nearly  all  agree  that  judgments  entered  against  lunatics  and  others  in- 
capable in  law  of  contracting  are  conclusively  binding  until  vacated  or  re- 
versed." To  the  same  effect,  see  Morley  v.  Lake  Shore  &  M.  S.  R.  Co.,  145 
U.  S.  162,  13  Sup.  Ct.  54,  36  L.  Ed.  925.  Contra,  Rockwell  v.  Butler.  17  Colo. 
290,  29  Pac.  458,  17  L.  R.  A.  611.  And  see  note  17  L.  R.  A.  611 ;  ante,  p.  10 ; 
post,  p.  6.34.     See  "Judyment,"  Dec^  Dig.  (Key-No.)  §  S. 

5  See  Leake,  Cont.  89-95. 

e  Vooght  V.  Winch,  2  Burn.  &  Aid.  662;  The  Rio  Grande  v.  Otis,  23  Wall. 
458,  23  L.  Ed.  158 ;  Osage  City  Bank  v.  Jones,  51  Kan.  379,  32  Pac.  1096 ;  Le 
Grange's  Lessee  v.  Ward,  11  Ohio,  2.58;  Penny  wit  v.  Foote,  27  Ohio  St.  600, 
22  Am.  Rep.  340;  Burwell  v.  Burgwyn,  105  N.  C.  498,  10  S.  E.  1099;  Suber 
V.  Chandler,  36  S.  C.  344,  15  S.  E.  426;  Junkans  v.  Bergin,  64  Cal.  203,  30 
Pac.  627 ;  Strong  v.  Lawrence,  58  Iowa,  55,  12  N.  W.  74 ;  Plollister  v.  Abbott, 
31  N.  H.  442,  61  Am.  Dec.  342;  post,  p.  617.  Bee  "Judgment;'  Dec.  Dig. 
{Key-So.)  §  6'S//;    Cent.  Dig.  §  1150. 

7  Smith  V.  Nichols,  5  Bing.  N.  C.  at  page  220;  Harrington  v.  Harrington, 
154  Mass.  517,  28  N.  E.  903 ;  Todd  v.  Stewart,  9  Q.  B.  759 ;  Oregonian  Ry. 
Co.  V.  Navigation  Co.  (C.  C.)  27  Fed.  277;  Burlen  y.  Sliannon,  99  Mass.  200, 
90  Am.  Dec.  733 ;  Hill  v.  Morse,  61  Me.  541 ;  post,  p.  500.  -S'ce  "Judgment,'" 
Dec.  Dig.  (Key-No.)  §§  5^0,  560;    Cent.  Dig.  §§  900-1002,  1019. 


<)2  CONTRACTS  UNDER   SEAL  (Ch.  3 

it  would  be  beyond  the  scope  of  a  book  on  contracts  to  go  into  the 

subject. 

Same — Remedies  of  Creditor 

(3)  The  j[udgment  creditor,  or  person  in  whose  favor  the  judg- 
ment is  entered,  has  certain  advantages  which  an  ordinary  creditor 
does  not  possess.  He  has  a  double  remedy  for  his  debt.  He  can 
take  out  execution  on  the  judgment,  and  so  obtain  directly  the 
sum  awarded,  and  he  can  also  bring  an  action  on  the  judgment  for 
nonfulfillment  of  the  obligation.' 

Recognisance 

A  recognizance  is  an  obligation  of  record  entered  into  generally, 
but  not  necessarily,  in  a  criminal  case,  before  some  court  of  record 
or  magistrate  duly  authorized,  with  condition  to  do  some  particular 
act;  as,  for  instance,  to  appear  at  court  as  a  witness,  or  for  trial,  to 
keep  the  peace,  or  to  pay  a  debt.® 


CONTRACTS  UNDER  SEAL 

29.  Contracts  under  seal,  otherwise  called  "deeds"  or  "specialties," 
derive  their  validity,  at  common  law,  from  their  form 
alone,  and  not  from  the  fact  of  agreement  or  consideration. 

It  is  often  said  that  the  seal  imports  a  consideration,  but,  as  we 
shall  see,  this  is  incorrect.  At  common  law  the  question  of  consid- 
eration is  altogether  immaterial.  The  form  alone  gives  the  contract 
its  validity.^" 

All  contracts  under  seal  are  called  "deeds"  or  "specialties."  We 
generally  use  the  term  "deed"  as  applying  to  conveyances  of  land, 
but  it  applies  as  well  to  all  contracts  under  seal.  Particular  con- 
tracts under  seal,  deeds,  or  specialties  are:  (1)  Grants  or  convey- 
ances of  land,  in  which  the  parties  are  called  respectively  "grantor" 
and  "grantee;"  (2)  bonds,  which  are  obligations  conditioned  upon 
the  payment  of  money,  or  the  doing  or  forbearance  from  doing 
some  act,  the  parties  to  a  bond  being  called  respectively  "obligor" 
and  "obligee;"  and  (3)  covenants,  which  are  agreements  between 
two  or  more  persons,  entered  into  by  deed — that  is,  under  seal — 

8  Jones  V.  Williams,  13  Mees.  &  W.  628,  See  "Judgment,"  Dec.  Dig.  (Key- 
No.)  §  900;    Cent.  Dig.  §  1719. 

8  Black,  Law  Diet.  tit.  "Recognizance ;"  2  Bl.  Comm.  341.  It  is  not  signed 
by  the  party  entering  into  it.  People  v.  Barrett,  202  111.  287,  67  N.  E.  23,  63 
L.  R.  A.  82,  95  Am.  St.  Rep.  230.  See  "Recognizance,"  Dec.  Dig.  {Key-No.)  § 
1;    Cent.  Dig.  §§  1-19. 

10  Leake,  Cont.  76. 


§§    30-32)  HOW   CONTRACTS   UNDER   SEAL   ARE    MADE  63 

whereby  one  or  more  of  them  promises  the  other  or  others  the  per- 
formance or  nonperformance  of  certain  acts,  or  that  a  given  state  of 
things  does  or  shall  or  does  not  or  shall  not  exist,  the  parties  being 
called  respectively  "covenantor"  and  "covenantee." 

HOW  CONTRACTS  UNDER  SEAL  ARE  MADE 

30.  A  deed  must  be  in  writing,  and  must  be  sealed  and  delivered, 

and  possibly  signed. 

31.  It  takes  effect  from  the  date  of  its  delivery. 

32.  ESCROW — A  deed  may  be  delivered  to  a  third  person  to  be 

delivered  to  the  other  party  to  it  on  the  performance  of  a 
condition,  and  in  such  case  takes  effect,  on  performance 
of  the  condition,  from  the  date  of  the  original  delivery. 

A  deed  must  be  in  writing  or  printed  on  paper  or  parchment.^* 
It  is  often  said  to  be  executed,  or  made  conclusive  as  between  the 
parties,  by  being  "signed,  sealed,  and  delivered."  At  common  law 
there  seems  to  be  some  doubt  whether  signature  to  a  deed  is  neces- 
sary,^^ but  it  is,  to  say  the  least,  safer  to  sign.  That,  however, 
which  identifies  a  party  to  a  deed  with  its  execution  is  the  presence 
of  his  seal ;  that  which  makes  it  operative,  so  far  as  he  is  concerned, 
is  the  fact  of  its  delivery  by  him.^^ 

The  Seal 
There  cannot  be  a  deed  or  specialty  without  a  seal.** 
A  seal  is  said  by  Lord  Coke  to  be  wax,  with  an  impression,*'  and 

no  doubt  anciently  wax  was  the  only  substance  used ;   but  it  is  no 

11  A  deed  is  a  writing  or  instrument,  written  on  paper  or  parchment,  sealed 
and  delivered,  to  prove  and  testify  the  agreement  of  the  parties  whose  deed 
it  is  to  the  things  contained  in  the  deed.  *  *  *  A  deed  cannot  be  written 
upon  wood,  leather,  cloth,  or  the  like,  but  only  upon  parchment  or  paper,  for 
the  writing  upon  them  can  be  least  vitiated,  altered,  or  corrupted."  Shep. 
Touch.  50 ;  Co.  Litt.  35b.  For  the  reason  why  a  deed  may  not  be  written  on 
wood,  see  Pol.  Cont.  156.  It  may  well  be  doubted  whether  the  old  rule  re- 
quiring paper  or  parchment  exclusively  would  be  strictly  followed  to-day. 
See  ''Deeds:'  Dec.  Dig.  (Kev-^'o.)  §§  26,  28;   Cent.  Dip.  §§  50-53. 

12  Leake,  Cont.  76 ;  Cooch  v.  Goodman,  2  Q.  B.  597 ;  Cromwell  v.  Gruns- 
den,  2  Salk.  462;  Jeffery  v.  Underwood,  1  Ark.  108.  See  "Deeds,"  Dec.  Diy. 
{Key-No.)  §  .'/.5;    Cent.  Dig.  §§  SO-OJf. 

13  Anson,  Cont.  (4th  Ed.)  46. 

1*  State  V.  Thompson.  49  Mo.  188;  Vance  v.  Funk,  2  Scam.  (111.)  263;  Chil- 
ton V.  People,  66  111.  501;  Stiibler  v.  Cowman,  7  Gill  &  J.  (Md.)  2.S4 ;  Booth- 
bay  V.  Giles,  68  Me.  160;  Corbin  v.  Laswell,  48  Mo.  App.  62(>.  Where,  how- 
ever, a  seal  Is  omitted  by  mistake,  a  court  of  equity  will  reform  the  Instru- 

18  3  Coke,  Inst.  169. 


64  CONTRACTS  UNDER  SEAL  (Ch.  3 

longer  essential.  The  impression  may  be  made  on  a  wafer  attached 
to  the  instrument,  or  any  other  substance  sufficiently  tenacious  to 
adhere,  and  capable  of  receiving  an  impression.^*  It  is  therefore 
held  sufficient  if  the  impression  is  made  on  the  paper  itself  on 
which  the  instrument  is  written.  It  need  not  be  on  a  separate  sub- 
stance attached  to  the  instruments^ 

Some  of  the  states  have  passed  statutes  allowing  a  scroll  or  scrawl 
made  with  the  pen  to  be  used  in  the  place  of  a  seal,^^  and  some 
courts  have  held,  independent  of  statute,  that  a  scroll  is  sufficient." 
At  common  law,  however,  this  is  not  permissible;  there  must  be  an 
impression.^" 

At  common  law  the  mere  affixing  of  the  seal  makes  the  instru- 
ment a  contract  under  seal,  but  it  has  been  held  that,  where  a  scroll  , 
is  used,  there  must  be  some  recital  in  the  body  of  the  instrument 

ment  by  supplying  one,  or  will  restrain  the  setting  up  of  the  want  of  one  to 
defeat  a  recovery  at  law.  Inhabitants  of  Bernards  Tp.  v.  Stebbins,  109  U.  S. 
341,  3  Sup.  Ct.  252,  27  L.  Ed.  956 ;  Wadsworth  v.  Wendell,  5  Johns.  Ch.  (N. 
Y.) '  224 ;  Town  of  Rutland  v.  Page,  24  Vt.  181 ;  Inhabitants  of  Town  of 
Montville  v.  Haughton,  7  Conn.  543;  Sullivan  v.  Latimer,  38  S.  C.  417,  17 
S.  E.  221.  The  matter  appearing  on  an  instrument  must  have  been  intended 
as  a  seal.  The  fact  that  it  appears  to  be  a  seal,  if  it  was  not  so  intended, 
does  not  make  the  instrument  a  specialty.  Clement  v.  Gunhouse,  5  Esp.  83 ; 
Blackwell  v.  Hamilton,  47  Ala.  470.  As  to  presumption  that  there  was  a  seal 
on  an  ancient  deed  on  which  no  seal  appears,  see  Reuseus  v.  Staples  (C.  C.) 
52  Fed.  91.    ,/See  "Deeds,"  Dec.  Dig.  {Key-No.)  §  //6;   Cent.  Dig.  §§  99-103. 

16  4  Kent,  Comm.  452;  Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239;  Tasker  v. 
Bartlett,  5  Cush.  (Mass.)  359;  Beardsley  v.  Knight,  4  Vt  471.  See  "Seals," 
Dec.  Dig.  (Key-No.)  §  3;   Cent.  Dig.  §§  Jf-6. 

17  Pillow  V.  Roberts,  13  How.  472,  14  L.  Ed.  228 ;  Pierce  v.  Indseth,  106 
U.  S.  546,  1  Sup.  Ct.  418,  27  L.  Ed.  254;  Hendee  v.  Pinkerton,  14  Allen 
(Mass.)  381.     See  "Seals,"  Dec.  Dig.  (Key-No.)  §  3;    Cent.  Dig.  §§  ^-6. 

18  Such  is  the  case  in  California,  Connecticut  Florida,  Indiana,  Illinois, 
Michigan,  Minnesota,  Missouri,  New  Jersey,  New  Mexico,  Oregon,  Virginia, 
West  Virginia,  and  Wisconsin,  and  probably  in  other  states.  The  word 
"seal,"  following  the  signature,  has  been  held  a  sufficient  compliance  with 
such  a  statute,  although  not  accompanied  by  any  scrawl,  stamp,  impression, 
or  mark.  Jackson  v.  Security  Mut  Life  Ins.  Co.,  233  111.  161,  84  N.  E.  198. 
See  "Seals,"  Dec.  Dig.  (Key-No.)  §§  8-5;   Cent.  Dig.  §§  3-7. 

19  HACKER'S  APPEAL,  121  Pa.  192,  15  Atl.  500,  1  L.  R.  A.  861,  Throck- 
morton, Cas.  Contracts,  40;  Lee  v.  Adkins,  Minor  (Ala.)  187;  Bertrand  v. 
Byrd,  4  Ark.  195;  Hastings  v.  Vaughn,  5  Cal.  315;  Trasher  v.  Everhart  3 
Gill  &  J.  (ISId.)  234 ;  Underwood  v.  Dollins,  47  Mo.  2.59 ;  Groner  v.  Smith,  49 
Mo.  318.  Whether  a  mark  or  character  shall  be  held  to  be  a  seal  depends 
on  the  intention  of  the  executant  as  shown  by  the  paper.  Jacksonville,  M.  P. 
Ry.  &  Nav.  Co.  v.  Hooper,  160  U.  S.  514,  16  Sup.  Ct  379,  40  L.  Ed.  515; 
HACKER'S  APPEAL,  supra.  See  "Seals,"  Dec.  Dig.  (Key-No.)  §§  S-^;  Cent. 
Dig.  §§  3-7. 

2  0  Warren  v.  Lynch,  supra;  Hendee  v.  Piukerton,  supra;  Bates  v.  Boston 
&  N.  Y.  C.  R.  Co.,  10  Allen  (Mass.)  251 ;    Perrine  v.  Cheeseman,  11  N.  J.  Law, 


§§    30-32)  HOW   CONTRACTS   UNDER   SEAL   ARE    MADE  65 

recognizing  it  as  a  sea!.^^     The  authorities  on  this  point  are  not  in 
accord.** 

One  seal  may  do  for  any  number  of  parties  signing  a  deed  if  each 
one  adopts  it  as  his  own,  but  it  is  always  safer  to  have  a  seal  for 
each  signature.-' 

Delivery 

To  render  an  instrument  under  seal  a  valid  and  binding  contract, 
it  must  be  delivered.-*  Delivery  may  be  effected  either  by  actually 
handing  the  instrument  to  the  other  party  himself,-^  or  to  a  stran- 

174,  19  Am.  Dec.  38S.     See  "Seals,"  Dec.  Dig.  {Key-Hso.)  §§  S-5 ;    Cent.  Dig. 
§§  3-7. 

21  Cromwell  v.  Tate's  Ex'r,  7  Leigh  (Va.)  301,  30  Am.  Dec.  506 ;  Lee  v.  Ad- 
kins,  Slinor  (Ala.)  187;  Glasscock  v.  Glasscock,  8  Mo.  577;  Lewis'  Ex'rs  v. 
Overby's  Adm'rs,  28  Grat.  (Va.)  627;  Breitling  v.  Marx,  123  Ala.  222,  26 
South'  203;  Echols  v.  Phillips,  112  Ga.  700,  37  S.  B.  977.  See  "Seals,"  Dec. 
Dig.  (Eeg-No.)  §§  3-5;    Cent.  Dig.  §§  3-7. 

2  2  "The  authorities,"  says  Prof.  Kuowlton  in  his  edition  of  Anson  on  Con- 
tracts", "are  not  in  accord  upon  this  question;  and,  while  much  may  depend 
on  the  wording  of  the  statute  allowing  the  scroll,  still  it  is  believed  that,  if 
the  device  adopted  is  intended  to  be  a  seal,  it  is  to  be  regarded  as  such,  though 
the  intention  be  not  expressly  declared.  The  presumption  is  that  the  parties 
undertook  to  execute  such  an  instrument  as  would  be  effectual  for  the  pur- 
pose intended."  Knowlton's  Anson,  Cont.  55.  See  Burton  v.  Leroy,  5  Sawy. 
510.  Fed.  Cas.  No.  2,217;  Trasher  v.  Everhart,  3  Gill  &  J.  (Md.)  234;  Eames 
V.  Preston,  20  111.  3S9 ;  Brown  v.  Jordhal,  32  Minn.  135,  19  N.  W.  650,  50  Am 
Rep.  510;  ^Ying  v.  Chase,  35  Me.  260;  Richardson  v.  Mining  Co.,  22  Cal.,  at 
page  157;  Frevall  v.  Fitch,  5  Whart.  (Pa.)  325,  34  Am.  Dec.  558;  21  Am.  & 
Eng.  Enc.  Law,  894,  note.  See  "Seals,"  Dec.  Dig.  (Key-No.)  §§  3-5;  Cent.  Dig. 
§i  3-7. 

23  Ball  V.  Dunsterville,  4  Term  R.  313,  Ludlow  v.  Simond,  2  Caines,  Cas.  1, 
2  Am.  Dec.  291 ;  Pickens  v,  Rymer,  90  N.  C.  282,  47  Am.  Rep.  521 ;  Davis  v. 
Burton,  3  Scam.  (111.)  41,  36  Am.  Dec.  511;  Yale  v.  Flanders,  4  Wis.  96;  Bur- 
nett V.  McCluey,  78  Mo.,  at  page  OSS;  Hollis  v.  Pond,  7  Humph.  (Tenn.)  222; 
In  re  Hess'  Estate,  150  Pa.  346,  24  Atl.  676 ;  Norvell  v.  Walker,  9  W.  Va.  447 ; 
Citizens'  Building  Ass'n  v.  Cummings,  45  Ohio  St.  664,  16  N.  E.  S41.  And 
see  Baltimore  Pearl  Hominy  Co.  v.  Linthicum,  112  Md.  27,  75  Atl.  737,  130 
Am.  St.  Rep.  883,  20  Ann.  Cas.  1325,  in  which  it  was  held  that  a  contract 
signed  by  two  parties,  but  having  a  seal  opposite  the  signature  of  only  one, 
was  not  a  contract  under  seal  of  the  other.  See  "Seals,"  Dec.  Dig.  {Key-No.) 
§§  3-5;  Cent.  Dig.  §§  3-7. 

2*  Sliep.  Touch.  57;  Cook  v.  Brown,  34  N.  H.  476;  Johnson  v.  Farley,  45 
N.  H.  505;  Overman  v. 'Kerr,  17  Iowa,  490;  Fisher  v.  Hall,  41  N.  Y.  421;  Duer 
V.  James,  42  Md.  492;  Younge  v.  Guilbeau,  3  Wall.  641,  18  L.  Ed.  2(J2 ;  Hiirris 
V.  Regester,  70  Md.  109,  16  Atl.  386.  Obtaining  deed  by  fraud,  no  delivery. 
Tisher  v.  Beckwith,  ."O  Wis.  55,  11  Am.  Rep.  546;  Gould  v.  Wise,  97  Cal. 
532,  32  Pac.  576,  33  Pac.  323.  See  "Deeds,"  Dec.  Dig.  (Key-No.)  §  5J,;  Cent. 
Dig.  §  116. 

"Richmond  v.  Morford,  4  Wash.  337,  30  Pac.  2-11,  31  Pac.  513;  Bogie  v. 
Bogie,  35  Wis.  059.  See  "Deeds,"  Dec.  Dig.  (Key-No.)  §  56;  Cent.  Dig.  §§ 
in-125. 

Ci.ARK  Cont.(3d  Kd.) — 5 


66  CONTRACTS   UNDER   SEAL  '  (Ch.  3 

ger  for  his  benefit,^'  or  by  words  or  conduct  indicating  an  intention 
that  the  instrument  shall  become  binding  though  it  is  retained  in 
the  possession  of  the  party  executing  it.^'^  In  all  cases  there  must 
be  an  intention  to  deliver  the  instrument.  Merely  to  part  with  the 
possession  of  it,  without  intending  thereby  to  render  it  operative, 
is  not  a  delivery.^* 

2  6  Peavey  v.  Tilton,  18  N.  H.  151,  45  Am.  Dec.  365;  Mitchell's  Lessee  v. 
Ryan,  3  Ohio  St.  377 ;  Otis  v.  Spencer,  102  111.  C22,,  40  Am.  Rep.  617 ;  Douglas 
V.  West,  140  111.  455,  81  N.  E.  403;  Hall  v.  Hall,  107  Mo.  101,  17  S.  W.  811; 
^Yllliams  v.  Latham,  113  Mo.  165,  20  S.  W.  99;  Brown  v.  Brown,  66  Me.  316; 
Duer  V.  James,  42  Md.  492 ;  Haenni  v.  Bleisch,  14G  HI.  2G2,  34  N.  E.  153 ;  Col- 
yer  v.  Hyden,  94  Ky.  180,  21  S.  W.  868;  White  v.  Pollock,  117  Mo.  467,  22  S. 
W.  1077,  38  Am.  St.  Rep.  671.  See  "Deeds,"  Dec.  Dig.  {Key-No.)  §  56;  Cent. 
Dig.  §§  117-125. 

2  7  Xenos  V.  Wickham,  L.  R.  2  H.  L.  296;  Roberts  v.  Security  Co.  [1897] 
1  Q.  B.  Ill;  Ruckman  v.  Ruckman,  32  N.  J.  Eq.  259;  Benneson  v.  Aiken, 
102  111.  284,  40  Am.  Rep.  592 ;  Rodemeier  v.  Brown,  169  111.  347,  48  N.  E.  468, 
61  Am.  St.  Rep.  176 ;  McCullough  v.  Day,  45  Mich.  554,  8  N.  W.  535 ;  Dunham 
V.  Pitkin,  53  Mich.  504,  19  N.  W.  166 ;  Wall  v.  Wall,  30  Miss.  91,  64  Am.  Dec. 
147.  Recording  of  deed  by  grantor  may  be  presumptive  evidence  of  delivery. 
Glaze  V.  Three  Rivers,  etc.,  Ins.  Co.,  87  Mich.  349,  49  N.  W.  595;  Steele  v. 
Lowry,  4  Ohio,  72,  19  Am.  Dec.  581 ;  Kemp  v.  Walker,  16  Ohio,  118 ;  Tobin  v, 
Bass,  85  Mo.  654,  55  Am.  Rep.  393;  Burke  v.  Adams,  80  Mo.  504,  50  Am. 
Rep.  510;  Swlney  v.  Swiney,  14  Lea  (Tenn.)  316;  Vaughan  v.  Godman,  103 
Ind.  499,  3  N.  E.  257;  Walton  v.  Burton,  107  111.  54;  Moore  v.  Giles,  49  Conn. 
570;  Palmer  v.  Palmer,  62  Iowa,  204,  17  N.  W.  463;  Whitney  v.  Hale,  67  N. 
H.  385,  30  Atl.  417 ;  Hotmes  v.  McDonald,  119  Mich.  563,  78  N.  W.  647,  75  Am. 
St.  Rep.  430.  The  presumption  may  be  rebutted,  however,  by  showing  that 
there  was  in  fact  no  delivery  and  acceptance.  Hendricks  v.  Rasson,  53  Mich. 
575,  19  N.  W.  192;  Jefferson  County  Bldg.  Ass'n  v.  Heil,  81  Ky.  516;  Weber 
V.  Christen,  121  111.  91,  11  N.  E.  893,  2  Am.  St.  Rep.  68;  Brown  v.  Brown, 
167  111.  631,  47  N.  E.  1046;  Fair  Haven  Marble  &  Marbleized  Slate  Co.  v. 
Owens,  69  Vt.  246,  37  Atl.  749.  It  is  very  generally  held  that  the  mere  fact 
of  recording  raises  no  presumption  of  delivery.  Gifford  v.  Corrigan,  105  N.  Y. 
223,  11  N.  E.  498 ;  Hill  v.  McNichol,  80  Me.  209,  13  Atl.  883 ;  Barnes  v.  Barnes, 
161  Mass.  381,  37  N.  E.  749;  Babbitt  v.  Bennett,  68  Minn.  260,  71  N.  W.  22. 
See  "Deeds,"  Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig.  §§  117-125. 

28  Jordan  v.  Davis,  108  111.  336;  Adams  v.  Ryan,  61  Iowa,  733,  17  N.  W.  159; 
If'eland  v.  Geraghty  (C.  C.)  15  Fed.  45.  "A  delivery  may  be  by  acts  without 
words,  or  by  words  without  acts,  or  by  both.  Anything  which  clearly  mani- 
fests the  intention  of  the  grantor,  and  the  person  to  whom  it  is  delivered, 
that  the  deed  shall  presently  become  operative  and  effectual;  that  the  gran- 
tor loses  all  control  over  it;  and  that  by  it  the  grantee  is  to  become  possessed 
of  the  estate, — constitutes  a  sufficient  delivery.  The  very  essence  of  the  de- 
livery is  the  intention  of  the  party."  Marshall  D.  Ewell,  in  note  to  Ireland 
V.  Geraghty,  supra.  And  see  Bryan  v.  Wash,  2  Gilman  (111.)  565 ;  Walker 
v.  Walker,  42  111.  311,  89  Am.  Dec.  445 ;  Duer  v.  James,  42  Md.  492 ;  Ruck- 
man V.  Ruckman,  32  N.  J.  Eq.  259 ;  Thatcher  v.  St  Andrew's  Church,  37  Mich. 
264;  Gregory  v.  Walker,  38  Ala.  26;  Burkholder  v.  Casad,  47  Ind.  418;  Rogers 
V.  Carey,  47  Mo.  235,  4  Am.  Rep.  322;  Williams  v.  Schatz,  42  Ohio  St.  47; 
Goodlet  V.  Kelly,  74  Ala.  213;  Davis  v.  Williams,  57  Miss.  843;  Burnett  v. 


§§30-32)  HOW   CONTRACTS   UNDER   SEAL   ARE   MADE  67 

To  constitute  a  good  delivery,  it  is  generally  held  in  this  coun- 
try that  there  must  also  be  an  acceptance  by  the  other  party, ^'  but 
the  acceptance  need  not  always  be  expressly  shown.  Where  the 
instrument  is  clearly  beneficial  to  the  other  party,  its  acceptance 
will  be  presumed,^**  though,  of  course,  this  cannot  be  so,  even  when 
it  is  beneficial,  if  acceptance  is  in  fact  refused,  for  a  man  cannot  be 
compelled  to  accept  even  a  benefit.^^  >\\'.''  •'    '  ' 

Possession  by  the  grantee  or  obligee  is  prima  facie  evidence  of 
delivery  and  acceptance.^'^  

As  the  delivery  of  a  contract  under  seal  is  what  makes  it  opera- 
tive, its  date  is  the  date  of  delivery.  The  date  appearing  on  the  in- 
strument is  entirely  immaterial.  It  may  have  no  date  at  all,  or  an 
impossible  date.^^  In  the  absence  of  anything  to  show  the  con- 
trary, a  deed  will  be  presumed  to  have  been  delivered  on  the  day 
of  its  date,  but  delivery  at  a  different  time  may  always  be  shown  by 
extrinsic  evidence.^* 

Same — Escrow 

A  deed  may  be  delivered  to  a  stranger,  to  be  by  him  delivered  to 
the  other  party  to  it  on  the  fulfillment  of  certain  conditions,  in 

Burnett,  40  Mich.  361.  Where  a  deed  is  placed  in  the  hands  of  a  depositary 
to  be  delivered  to  the  grantee  upon  the  death  of  the  grantor,  or  at  any  other 
time,  but  the  grantor  reserves  the  right  and  power  to  recall  it  at  any  time, 
there  is  no  delivery.  Cook  v.  Brown,  supra ;  Stinson  v.  Anderson,  96  111.  373 ; 
Prutsman  v.  Baker,  30  Wis.  644,  11  Am.  Rep.  592;  Baker  v.  Haskell,  47  N. 
H.  479,  93  Am.  Dec.  455;  Brown  v.  Brown,  66  Me.  316;  Duer  v.  James,  42 
Md.  492.     See  "Deeds,"  Dec.  Dig.  (Key-No.)  §  56;  Cent.  Dig.  §§  117-125. 

2  9  Moore  v.  Flynn,  135  111.  74,  25  N.  E.  844;  Mitchell's  Lessee  v.  Ryan,  3 
Ohio  St.  377 ;  Corbett  v.  Norcross,  35  N.  H.  99 ;  Leppoc  v.  Bank,  32  Md.  136 ; 
Comer  v.  Baldwin,  16  Minn.  172  (Gil.  151) ;  Meigs  v.  Dexter,  172  Mass.  217, 
52  X.  E.  75.  Third  parties  may  acquire  rights  by  attachment  or  otherwise 
at  any  time  before  acceptance.  Bell  v.  Bank,  11  Bush  (Ky.)  34,  21  Am.  Rep. 
205;  Parmelee  v.  Simpson,  5  Wall.  81,  18  L.  Ed.  542;  Day  v.  Griffith,  15 
Iowa,  104.    See  "Deeds,"  Dec.  Dig.  (Key-No.)  §  6^;  Cent.  Dig.  §§  142-143. 

3  0  Peavey  v.  Tilton,  18  N.  H.  151,  45  Am.  Dec.  365;  Mitchell's  Lessee  v. 
Ryan,  3  Ohio  St.  377;  Halluck  v.  Bush,  2  Root  (Conn.)  26,  1  Am.  Dec.  60; 
Wall  V.  Wall,  30  Miss.  91,  64  Am.  Dec.  147;  Whitney  v.  Hale,  67  N.  H.  385, 
30  Atl.  417.    See  "Deeds,"  Dec.  Dig.  (Key-Xo.)  §  194;  Cent.  Dig.  §  .579, 

21  See  Iveake,  Cont  81;  Butler  and  Baker's  Case,  3  Coke,  2Gb;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Ruddell,  53  Ark.  32,  13  S.  W.  418;  Atwood  v.  JIarshall, 
52  Neb.  173,  71  N.  W.  1001.  And  sec  cases  cited  supra,  note  27.  See  "Deeds," 
Dec.  Dig.  (Key-No.)  §  194;  Cent.  Dig.  §  579. 

3  2  Keedy  v.  Moats,  72  Md.  325,  19  Atl.  965;  Dawson  v.  Hall,  2  Mich.  390; 
Wood  V.  Chetwood,  44  N.  J.  Eq.  64,  14  Atl.  21.  See  "Deeds,"  Dec.  Dig.  (Key- 
No.)  §  208;  Cent.  Dig.  §§  625-632. 

88  McMichael  v.  Carlyle,  53  Wis.  504,  10  N.  W.  556.  See  "Deeds,"  Dec.  Dig. 
(Key-No.)  §§  67,  lOS;  Cent.  Dig.  §§  ].>,5-14S.  294-308. 

»i  Faulkner  v.  Adams,  126  Ind.  459,  26  N.  E.  170;  Saunders  v.  Blythe,  112 


68  CONTRACTS   UNDER   SEAL  (Ch.  3 

which  case  it  does  not  take  effect  until  the  condition  is  fulfilled."* 
This  is  a  delivery  in  escrow,  and  during  this  period  the  deed  is 
termed  an  "escrow."  Immediately  upon  fulfillment  of  the  condi- 
tions, the  deed  becomes  operative,  without  actual  delivery  by  the 
depositary.^'  To  constitute  an  escrow,  the  delivery  to  the  deposi- 
tary must  be  conditional.  If  it  is  merely  postponed,  the  delivery  to 
him  is  an  effective  delivery  to  the  grantee  or  obligee,  and  not  a  de- 
livery in  escrow. ^^  A  deed  thus  conditionally  delivered  must  be 
delivered  to  a  stranger.  If  it  is  delivered  to  the  other  party,  or  to 
his  agent,  it  will  take  effect  at  once,  in  spite  of  the  conditions,  on 
the  ground  that  a  delivery  in  fact  outweighs  verbal  conditions.'* 

There  is  no  delivery,  even  as  an  escrow,  where  the  grantor  or 
obligor  retains  control  of  the  deed  with  power  to  withdraw  it.'® 

Upon  delivery  of  an  escrow,  and  performance  or  happening  of  the 
condition,  the  deed  becomes  effective  from  the  date  of  the  original 

Mo.  1,  20  S.  W.  319;  Smith  v.  Porter,  10  Gray  (Mass.)  66;  Battles  v.  Fobes, 
21  Pick.  (Mass.)  239.    See  "Deeds,"  Dec.  Dig.  (Key-No.)  §  IH;  Cent.  Dig.  §  578. 

85  Harkreader  v.  Clayton,  56  Miss.  3S3,  31  Am.  Rep.  369;  Wheelwrigtit  v. 
Wlieelwright,  2  Mass.  447,  3  Am.  Dec.  66;  Prutsman  v.  Baker,  30  Wis.  644, 
11  Am.  Rep.  592.  See  "Deed^,"  Dec.  Dig.  (Key-No.)  §§  59-61;  Cent.  Dig.  §§ 
136-141;  "Escroios,"  Dec.  Dig.  (Key-No.)  %  1;  Cent.  Dig.  §§  1-5. 

38  Prutsman  v.  Baker,  supra ;  Couch  v.  Meeker,  2  Conn.  302,  7  Am.  Dec. 
274;  White  Star  Line  Steamboat  Co.  v.  Moragne,  91  Ala.  610,  8  South.  867. 
See  "Deeds,"  Dec.  Dig.  (Key-No.)  §§  59-61;  Cent.  Dig.  §§  136-141;  "Escroics," 
Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig.  §§  12,  13. 

8T  Martin  v.  Flaharty,  13  Mont  96,  32  Pac.  287,  19  L.  R.  A.  242,  40  Am. 
St.  Rep.  415.  See  "Deeds,"  Dec.  Dig.  (Key-No.)  §§  59-61;  Cent.  Dig.  §§  136- 
141 ;  "Escrows,"  Dec.  Dig.  (Key-No.)  %  6;  Cent.  Dig.  §  8. 

38  Co.  Litt.  36a;  Dawson  v.  Hall,  2  Mich.  390;  Fairbanks  v.  Metcalf,  8 
Mass.  230;  Foley  v.  Cowgill,  5  Blackf.  (Ind.)  18.  32  Am.  Dec.  49;  Stevenson 
V.  Crapnell,  114  111.  19,  28  N.  E.  379;  Miller  v.  Fletcher,  27'Grat.  (Va.)  403,  21 
Am.  Rep.  356 ;  Braman  v.  Bingham,  26  N.  Y.  483 ;  Cocks  v.  Barker,  49  N.  Y. 
110;  Graves  v.  Tucker,  10  Smedes  &  M.  (Miss.)  9;  Ordinary  of  State  v. 
Thatcher,  41  N.  J.  Law,  403,  32  Am.  Rep.  225;  Gibson  v.  Partee,  19  N.  C. 
530;  Williams  v.  Higgins,  69  Ala.  517;  Richmond  v.  Morford,  4  Wash.  337, 
30  Pac.  241,  31  Pac.  513;  Hubbard  v.  Greeley,  84  Me.  340,  24  Atl.  799,  17 
L.  R.  A.  511 ;  Campbell  v.  Jones,  52  Arlc  493,  12  S.  W.  1016,  6  L.  R.  A,  783 ; 
Dixon  V,  Bank,  102  Ga.  461,  31  S.  E.  96,  66  Am.  St.  Rep.  193. 

In  New  York  it  has  recently  been  held  that  the  rule  does  not  apply  when 
the  instrument  does  not  relate  to  real  estate,  at  least  where  it  does  not  re- 
quire a  seal  for  its  validity.  Blewitt  v.  Boorum,  142  N.  Y.  357,  37  N.  E.  119, 
40  Am.  St.  Rep.  600.  Quaere,  whether  the  rule  still  prevails  in  England. 
Anson,  Cont.  (Sth  Ed.)  53  ;  Hudson  v.  Revett,  5  Bing.  3GS,  387.  See  "Deeds," 
Dec.  Dig.  (Key-No.)  §§  59-61;  Cent.  Dig.  §§  136-lU;  "Escrows,"  Dec.  Dig. 
(Key-No.)  §  4;    Cent.  Dig.  §  7. 

39  Prutsman  v.  Baker,  supra;  Campbell  v.  Thomas,  42  Wis.  437,  24  Am. 
Rep.  427;  Brown  v.  Brown,  66  Me.  316.  See  "Deeds,"  Dec.  Dig.  (Key-No.)  §§ 
59-61;  Cent.  Dig.  §§  IS6-I4I;  "Escrows;'  Dec.  Dig.  (Key-No.)  §  4;  Cent. 
Dig.  §  7. 


§    33)  CHARACTERISTICS    OF   CONTRACT    UNDER   SEAL  69 

delivery ;  so  that,  if  a  bond  is  delivered  as  an  escrow,  and  before 
fulfillment  of  the  condition  the  obligor  and  obligee  die,  yet,  on  ful- 
fillment of  the  condition,'  it  becomes  an  effective  bond,  and  charges 
the  asset's  of  the  deceased  obligor.*" 

Execution  in  Blank 

A  deed  executed  in  blank — that  is,  completely  sealed  and  deliv- 
ered, with  an  omission  of  a  material  particular — is  void,  and  cannot 
be  made  good  by  subsequently  filling  in  the  blank  without  a  re- 
execution,  or  what  is  equivalent  thereto.*^ 

Deed  Poll  and  Indenture 

Formerly  there  was  a  distinction  between  a  deed  poll  and  an  in- 
denture. A  deed  poll  was  a  deed  made  by  one  party,  and  having  a 
polled  or  smooth-cut  edge.  Where  a  deed  was  made  by  two  or 
more  parties,  and  contained  mutual  covenants,  it  was  copied  for 
each  on  the  same  parchment,  and  the  copies  cut  apart  with  indented 
edges,  so  as  to  enable  them  to  be  identified  by  fitting  the  parts  to- 
gether. Such  deeds  were  called  indentures.  The  distinction,  even 
where  it  has  not  been  abolished  by  statute,  is  no  longer  of  any  prac- 
tical importance;  but  the  terms  are  still  used — the  term  "deed. poll" 
to  signify_a_deed  made  by  one  party  only,  and  the  term  "indenture," 
a  deed  made  between  two  or  more  parties,  all  of  whom  execute  it. 

CHARACTERISTICS  OF  CONTRACT  UNDER  SEAL 

33.  The  chief  characteristics  of  a  deed  or  contract  under  seal  are 
that: 

(a)  The  recitals  are  conclusive  against  the  parties.     They  are 

said  to  be  estopped  thereby.  •  *|  ,       ,  ;,  ^  i  .^ 

(b)  It  merges  a  prior  simple  contract.  '  (  '^^^,^^^VC/'7f^ 

(c)  A  right  of  action  is  not  barred  until  the  lapse  of  a  longer 

time  than  in  case  of  simple  contracts. 

(d)  No  consideration  is  necessary. 

EXCEPTIONS— (1)  Contracts  in  partial  restraint  of  trade, 
though  under  seal,  require  consideration. 

40  Leake,  Cont  79. 

41  Leake,  Cont.  79;  Powell  v.  Du£f,  3  Camp.  181;  Weeks  v.  Maillardet,  14 
East,  5G8.  Blank  for  sum  of  money  afterwards  filled  in.  Hudson  v.  Revett, 
6  Bing.  308.  Since  authority  to  execute  a  deed  must  be  conferred  by  instru- 
ment under  seal,  In  strictness  authority  to  fill  a  blank  In  a  deed  otherwise 
executed  cannot  be  conferred  by  parol.  Many  courts,  however,  to-day  recog- 
nize the  validity  of  a  deed  in  which  blanks  have  been  so  filled  by  an  agent 
authorized  by  parol.  See  Tiff.  Ag.  23.  See  "Deeds,"  Dec.  Dig.  (Kei/-No.)  | 
S2;    Cent.  Dig.  %  61,. 


70  CONTRACTS   UNDER   SEAL  (Ch.  3 

(2)  Where  there  was  a  consideration,  it  may  be  shown  to 

have  been  illegal  or  immoral. 

(3)  Courts  of  equity  will  not   specifically   enforce  a  deed 

without  consideration. 

(4)  By  statute  in  some  states  the  distinction  between  sealed 

and  unsealed  instruments  is  abolished,  while  in  others 
a  seal  is  merely  declared  presumptive,  but  rebuttable, 
evidence  of  a  consideration. 

Estoppel  by  Deed 

Statements  made  in  a  simple  contract,  though  strong  evidence 
against  the  parties  thereto,  are  not  absolutely  conclusive  against 
them,  and  may  be  contradicted.  Statements  made  in  a  deed,  how- 
ever, are  absolutely  conclusive  against  the  parties  to  the  deed  or 
their  privies  in  any  legal  proceedings  between  them  taken  upon 
the  deed.*^  "The  principle  is  that,  where  a  man  has  entered  into  a 
solemn  engagement  by  and  under  his  hand  and  seal  as  to  certain 
facts,  he  shall  not  be  permitted  to  deny  any  matter  he  has  so  as- 
serted." *'  Such  a  prohibition  to  deny  facts  is  termed  an  "estoppel 
by  deed."  The  statements,  however,  must  not  be  of  immaterial 
matters,  or  matters  by  way  of  general  recital,  and  the  deed  must  be 
valid.**  A  recital  of  the  amount  or  receipt  of  the  consideration 
does  not  preclude  evidence  of  the  actual  consideration  or  a  recovery 
of  the  amount  due;*'  but  in  the  absence  of  mistake,  fraud,  or  il- 

42  WATKINS  V.  ROBER'I^SON,  105  Va.  2G9,  54  S.  E.  33,  5  L.  R.  A.  (N.  S.) 
1194,  115  Am.  St  Rep.  SSO,  Throckmorton  Cas.  Contracts,  43 ;  Carver  v.  Jack- 
son, 4  Pet.  1,  at  page  83,  7  L.  Ed.  761 ;  Jackson  v.  Parkhurst,  9  Wend.  (N.  Y.) 
209;  Smith  v.  Burnham,  9  Johns.  (N.  Y.)  306;  Cutler  v.  Dickinson,  8  Pick. 
(Mass.)  386;  Dobbins  v.  Cruder,  108  111.  188;  City  of  Ottawa  v.  Bank,  105 
U.  S.  342,  26  L.  Ed.  1127 ;  Gerry  v.  Stimson,  60  Me.  186 ;  Thompson  v.  Smith, 
96  Mich.  258,  55  N.  W.  886 ;  Carson  v.  Cochran,  52  Minn.  67,  53  N.  W.  1130 ; 
Moore  v.  Earl,  91  Cal.  632,  27  Pac.  1087;  Chapman  v.  Persinger's  Es'x.  87 
Va.  581,  13  S.  E.  549 ;  Billingsley  v.  Harris,  79  Wis.  103.  48  N.  W.  108 ;  Met- 
ropolitan Ins.  Co.  V.  Bender,  124  N.  Y.  47,  26  N.  B.  345,  11  L.  R.  A.  708; 
Rogers  v.  Bollinger,  59  Ark.  12,  26  S.  W.  12;  Balue  v.  Taylor,  136  Ind.  368, 
36  N.  E.  269 ;  Johnston  v.  Oliver,  51  Ohio  St.  6,  36  N.  E.  458 ;  Willis  v.  Terry 
(Ky.)  24  S,  W.  621.  See  "Contracts;'  Dec.  Dig.  (Key-yo.)  §  82;  Cent.  Dig. 
§§  225-230;    "Estoppel,"  Dec.  Dig.   (Key-No.)  §  14;    Cent.  Dig.  §§  18-2o. 

43  Bowman  v.  Taylor,  2  Adol.  &  E.  278.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  82;  Cent.  Dig.  §§  225-230;  "Estoppel,"  Dec.  Dig.  (Key-No.)  §  14; 
Cent.  Dig.  §§  18-25. 

4  4  Wallace's  Lessee  v.  Miner,  6  Ohio,  367;  Zimmler  v.  Water  Co.,  57  Cal. 
221.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  82;  Cent.  Dig.  §§  225-230;  "Es- 
toppel," Dec.  Dig.  (Key-No.)  §  14;    Cent.  Dig.  §§  18-25. 

4  5  Wilkinson  v.  Scott,  17  Mass.  249;  Irvine  v.  McKeon,  23  Cal.  472;  Wit- 
beck  V.  Waine,  16  N.  Y.  532 ;  White  v.  Miller,  22  Vt.  380 ;  Thayer  v.  Viles, 
23   Vt  494;    McCrea  v,   Purmort  16  Wend.   (N.   Y.)   460,  30  Am.    Dec.   103; 


§    33)  CHARACTERISTICS    OF   CONTRACT   UNDER   SEAL  71 

legality/*  such  recital  may  not  be  contradicted  for  the  purpose  of 
avoiding  the  instrument.*'' 

Recitals   in  a  deed  are,  of  course,  conclusive  only  against   the 
parties  thereto  and  their  privies,  or  those  claiming  under  or  through 
them.    They  do  not  work  an  estoppel  as  between  strangers,  nor  as 
between  a  stranger  and  a  party  to  the  deed.*' 
Merger 

Where,  after  making  a  simple  contract,  the  parties  enter  into  an 
identical  engagement  under  seal,  the  simple  contract  is  merged  in 
the  deed,  and  becomes  extinct;  one  cannot  have,  in  respect  of  the 
same  demand,  a  coexisting  remedy,  by  proceeding  both  on  cove- 
nant and  on  simple  contract.*'  This  extinction  is  called  "merger." 
The  contracts,  however,  must  be  the  same — that  is,  the  subject- 
matter  must  be  identical — and  they  must  be  between  the  same 
parties."" 

Limitation  of  Actions        , 

A  right  of  action  arising  out  of  a  simple  contract  is  barred  by  the 
lapse  of  a  shorter  period  of  time  than  a  right  of  action  arising  out 
of  a  contract  under  seal.  The  respective  periods  vary  somewhat 
under  the  statutes  of  the  different  states,  but  generally  an  action 

Pritchard  v.  Brown,  4  N.  H.  397,  17  Am.  Dec.  431 ;  Smith  v.  Arthur,  110  N. 
C.  400,  15  S.  E.  107;  Union  Mat.  Ins.  Co.  v.  Kirchoff,  133  111.  3G8,  27  N.  E. 
91.  See  "Evidence,"  Dec.  Dig.  {Key-lS^o.)  §  1,19;  Cent.  Dig.  §§  1912-1928; 
"Contracts;'  Cent.  Dig.  §§  229,  ^08. 

*«  See  post,  p.  168. 

47  WATKINS  V.  ROBERTSON,  105  Va.  2G9,  54  S.  E.  33,  5  L.  R.  A.  (N.  S.) 
1194,  115  Am.  St.  Rep.  880,  Throckmorton  Cas.  Contracts,  43.  See  "Evi- 
dence," Dec.  Dig.   (Key-No.)  §  419; 'Cent.  Dig.  §§  1912-1928. 

4  8  Thomason  v.  City  of  Dayton,  40  Ohio  St.  63;  Allen  v.  Allen,  45  Pa.  at 
page  473 ;  Brittain  v.  Daniels,  94  N.  C.  781 ;  Reeves  v.  Brayton,  36  S.  C.  384, 
15  S.  E.  658.     See  "Estoppel,"  Dec.  Dig.  (Key-No.)  §  26;   Cent.  Dig.  §§  61,  62. 

*8  Price  V.  Moulton,  10  C.  B.  561 ;  Banorgee  v.  Hovey,  5  Mass.  11,  4  Am. 
Dec.  17;  Leonard  v.  Hughlett,  41  Md.  380;  Curson  v.  Monteiro,  2  Johns.  (N. 
Y.)  308;  Rhoads  v.  Jones,  92  Ind.  328;  Robbins  v.  Ayres,  10  Mo.  538,  47  Am. 
Dec.  125;  McNaughten  v.  Partridge,  11  Ohio,  223,  28  Am.  Dec.  731;  Bnrnes 
V.  Allen,  31  N,  C.  370 ;  Berry  v.  Bacon,  28  Miss.  318 ;  Griswold  v.  Eastman, 
51  Minn.  189,  53  N.  W.  542 ;  Shenandoah  Valley  R.  Co.  v.  Duulop,  80  Va.  346, 
10  S.  E.  239.  But  see  Shelby  v.  Railroad  Co.,  143  111.  385,  32  N.  E.  438 ;  Sa- 
vllle  V.  Chalmers,  76  Iowa,  325,  41  N.  W.  30;  post,  p.  599.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  2f,5 ;   Cent.  Dig.  §§  1129,  IISO. 

60  Hutchins  v.  Hebbard,  34  N.  Y.  24;  Day  v.  Leal,  14  Johns.  (N.  Y.)  404 
If  the  contract  under  seal  is  expressly  received  as  collateral  security  for  per- 
formance of  the  simple  contract,  or  if  it  merely  recognizes  the  debt,  and  fixes 
the  mode  of  ascertaining  its  amount,  there  is  no  merger.  Marryat  v.  Marry- 
at,  28  Beav.  224;  Van  Vleit  v.  Jones,- 20  N.  J.  Law,  340,  43  Am.  Dec.  633; 
Rees  V.  Logsdon,  08  Md.  93,  11  Atl.  708 ;  Brengle  v.  Bushey,  40  Md.  at  page 
147,  17  Am.  Rep.  586;  Charles  v.  Scott,  1  Serg.  &  R.  (Pa.)  294;  post,  p.  599 
Bee  "Contracts,"  Dec.  Dig.  (Key-No.)  §  2Jf5;    Cent.  Dig.  §§  1129,  IISO. 


72  CONTRACTS   UNDER   SEAL  (Ch.  3 

on  a  simple  contract  is  barred  in  six  years  or  less,  while  an  action 
on  a  sealed  instrument  is  not  barred  if  brought  within  ten,  or,  in 
some  jurisdictions,  twenty,  years. 

Gratuitous  Promises 

.At  common  law,  a  gratuitous  promise,  or  promise  for  which  the 
promisor  obtains  no  consideration,  is  binding  if  made  under  seal,^^ 
but  is  absolutely  void  in  the  absence  of  a  seal.  This  characteristic 
of  contracts  under  seal  is  often  accounted  for  on  the  ground  that 
their  solemnity  imports  a  consideration,  but  the  supposition  is  his- 
torically untrue.  At  common  law,  even  if  it  were  allowable  to 
show  that  there  is  no  consideration  for  a  deed,  and  if  the  obligee 
or  grantee  were  to  admit  that  there  was  no  consideration,  it  could 
not  affect  the  validity  of  the  deed.  It  derives  its  validity  solely 
from  its  form.  The  doctrine  of  consideration  is  of  a  much  later 
date  than  that  at  which  a  contract  under  seal  was  in  full  efficacy, 
an  efficacy  which  it  owed  entirely  to  its  form."**  .jcX-^ 

Same — Exceptions  at  Common  Law  '     ■"^7' 

Even  at  common  law  a  contract  in  partial  restraint  of  trade, 
though  made  under  the  formality  of  a  seal,  must  be  supported  by 
a  consideration.'*' 

And  as  a  general  rule,  if  there  be  a  consideration  for  a  deed,  it  is 
open  to  the  party  sued  on  the  contract  to  show  that  the  considera- 
tion was  illegal  or  immoral,  in  which  case  the  deed  is  void/* 

Same — Exceptions  in  Equity 

The  idea  of  consideration  as  a  necessary  element  of  contract  has 
always  met  with  peculiar  favor  in  courts  of  chancery.     Equity  will 

512  Bl.  Comm.  446;  Cooch  v.  Goodman,  2  Q.  B.  5S0 ;  Fallowes  v.  Taylor,  7 
Term  R.  475 ;  McMillan  v.  Ames,  33  Minn.  257.  22  N.  W.  612 ;  Dorr  v.  Mun- 
sell,  13  Johns.  (N.  Y.)  430 ;  Van  Valkenburgh  v.  Smith,  60  Me.  97 ;  Harris  v. 
Harris'  Ex'r,  23  Grat.  (Va.)  737 ;  Wing  v.  Peck,  54  Yt.  245 ;  Page  v.  Trufaut, 
2  Mass.  159,  3  Am.  Dec.  41 ;  State  v.  Gott,  44  Md.  341 ;  Edelin  v.  Sanders, 
8  Md.  118;  Day  v.  Davis,  64  Miss.  253,  8  South.  203.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §§  ^7,  Jf8;    Cent.  Dig.  §§  220,  221,  256-25S,  1,06. 

6  2  Anson,  Cent.  (4th  Ed.)  49. 

88  Mallan  v.  May,  11  Mees.  &  W.  665 ;  Palmer  v.  Stebbins,  3  Pick.  (Mass.) 
188,  15  Am.  Dec.  204;  Wiley  v.  Baumjrardner,  97  Ind.  68,  49  Am,  Hep.  427; 
Keeler  v.  Taylor,  53  Pa.  467,  91  Am.  Dec.  221.  Of  course  this  does  not  apply 
to  contracts  that  are  to  such  an  extent  in  restraint  of  trade  as  to  be  con- 
trary to  public  policy.  Such  contracts  are  void,  as  being  illegal,  without  re- 
gard to  the  question  of  consideration.  Alger  v.  Thacher,  19  Pick.  (Mass.)  51, 
31  Am.  Dec.  119.  See  post,  p.  384.  See  ''Contracts;'  Dec.  Dig.  (Key-No.)  §§ 
47,  J,8,  116;   Cent.  Dig.  §§  220,  221,  1,06,  5J,2. 

84  Collins  V.  Blantern,  1  Smith,  Lead.  Gas.  369;  Logan  v.  Plummer,  70  N. 
C.  388.  And  see  Paxton  v.  Popham,  9  East,  42L  See  "Contracts;"  Dec.  Dig. 
(Key-No.)  §  1S6;    Cent.  Dig.  §§  681-700. 


§    33)  CHARACTERISTICS    OF   CONTRACT    UNDER   SEAL  73 

not  grant  its  peculiar  remedy  of  specific  performance,  nor  exercise 
its  peculiar  power  to  correct  mistakes  and  reform  contracts,  where 
the  promises  are  without  consideration,  even  though  they  are  un- 
der seal.^^  So,  also,  in  the  exercise  of  its  peculiar  power  of  declar- 
ing a  contract  void  and  setting  it  aside  on  the  ground  of  fraud  and 
undue  influence,  it  will  look  into  the  question  of  consideration,  and 
absence  of  consideration  will  be  regarded  as  corroborative  evidence 
of  fraud  and  undue  influence."' 

Even  a  court  of  equity,  however,  will  not  relieve  a  person  from 
his  obligation  under  a  sealed  contract,  simply  for  want  or  failure 
of  consideration."^ 

Same — Statutory  Changes  in  the  Law 

In  some  of  the  states  the  common-law  rules  in  relation  to  sealed 
instruments  have  been  either  altogether  abolished  or  greatly  modi- 
fied by  statute.  In  some  states  it  is  declared  that  any  written  in- 
strument, whether  under  seal  or  not,  is  presumptive  evidence  of  a 
consideration,  and  all  distinctions  between  sealed  and  unsealed  in- 
struments are  expressly  abolished,  and  in  these  states  want  or 
failure  of  consideration  may  always  be  shown,  even  though  the  in- 
strument is  sealed.^* 

In  other  states  the  distinction  between  sealed  and  unsealed  in- 
struments is  not  altogether  abolished;  but  it  is  declared  that  the 
seal  shall  only  be  presumptive  evidence  of  a  sufficient  considera- 

5  5  Smith  V.  Wood,  12  Wis.  425;  Bayler  v.  Com.,  40  Pa.  37,  80  Am.  Dec. 
551;  Black  v.  Cord,  2  Har.  «&  G.  (Md.)  100;  Keffer  v.  Grayson,  76  Va.  517, 
44  Am.  Rep.  171 ;  Snyder  v.  Jones,  38  Md.  542 ;  Anon.,  12  Mod.  603.  But  see 
infra,  note  57.  See  "Specific  Performance,"  Dec.  Dig.  (Key-No.)  §§  49,  50; 
Cent.  Dig.  §§  11,0-152. 

5  6  Hazard  v.  Irwin,  18  Pick.  (Mass.)  95;  Goudy  v.  Gebhart,  1  Ohio  St.  262; 
Mortland  v.  Mortland,  151  Pa.  593,  25  Atl.  150.  See  "Cancellation  of  Instriu- 
ments,"  Dec.  Dig.  (Key-No.)  §§  4,  5;   Cent.  Dig.  §§  IS. 

5  7  Doughty  V.  Miller,  50  N.  J.  Eq.  529,  25  Atl.  153.  And  see  WATKINS  v. 
ROBERTSON.  105  Va.  269,  54  S.  E.  33,  5  L.  R.  A.  (N.  S.)  1194,  115  Am.  St. 
Rep.  SSO,  Throckmorton  Cas.  Contracts,  43,  where  it  is  said,  per  Cardwell,  J.: 
"There  is  much  conflict  among  the  authorities  as  to  whether  courts  of  equity 
will  decree  specific  performance  of  an  executory  contract  or  covenant  because 
it  is  under  seal,  where  it  is  not  also  supported  by  an  actual  valuable  consid- 
eration, and  many  of  them  take  the  negative  view;  but,  undoubtedly,  this  is 
to  be  ascribed  to  the  fact  that  the  ancient  rule  of  the  common  law,  that  a 
seal  conclusively  imports  a  consideration,  has  been  repealed  or  modified  by 
statute  in  most  of  the  states,  and  text-writers  in  citing  cases  fail  in  many 
Instances  to  make  allowance  for  this  fact."  See  "Cancellation  of  Instru- 
menis,"  Dec.  Dig.  (Key-No.)  §  3;  Cent.  Dig.  §§  1-5;  "Deeds,"  Cent.  Dig.  | 
210. 

68  There  are  such  statutes  as  this  in  California,  Kentucky,  Indiana.  Iowa, 
Kansas,  Nebraska,  Wa.shiugtou,  and  probably  in  other  states.  See  "Seals." 
Dec.  Dig.  {Key-No.)  §§  1,  2;    Cent.  Dig.  {§  1,  2. 


74  CONTRACTS   UNDER   SEAL  (Ch.  3 

tion,  which  may  be  rebutted  in  the  same  manner  and  to  the  same 
extent  as  if  the  instrument  were  not  sealed.*^  The  New  Jersey 
court,  in  an  action  on  a  sealed  note  presented  by  a  father  to  his 
daughter  as  a  gift,  held  that  such  a  statute  as  this  did  not  abolish 
all  distinctions  between  simple  contracts  and  specialties,  but  mere- 
ly established  new  rules  of  evidence,  for  the  purpose  of  allowing 
parties  to  an  instrument  under  seal  to  show  that  there  was  no  con- 
sideration, where  they  intended  that  there  should  be  a  considera- 
tion ;  and  that  it  did  not  make  it  impossible  for  parties  intentional- 
ly to  enter  into  binding  gratuitous  promises.'** 


NECESSITY  FOR  CONTRACT  UNDER  SEAL, 

34.  A  contract  under  seal  is  necessary  at  common  law — 

(a)  Where  the  promise  is  without  consideration. 

(b)  Formerly,  corporations  could  only  contract  under  seal,  with 

some  few  exceptions ;  but  with  us  they  can  make  con- 
tracts which  they  have  the  power  to  enter  into  in  the  same 
manner  as  a  natural  person,  unless  restricted  by  charter. 

(c)  Conveyances  of  land  are  in  most  jurisdictions  required  to  be 

under  seal. 

It  is  usually  a  matter  of  choice  with  persons  whether  they  will 
contract  by  word  of  mouth  or  simply  in  writing,  or  in  writing  un- 
der seal ;  but  in  some  cases,  either  at  common  law  or  by  statute,  it 
is  necessary  to  employ  the  form  of  a  deed. 

At  Common  Law — Gratuitous  Promises — Contracts  with  Corpora- 
tions 

There  are  two  cases  in  which  the  old  common  law  required  that 
a  contract  should  be  made  under  seal,  namely:  (1)  Where  the 
contract  was  not  founded  on  a  consideration ;  and  (2)  where  it 
was  made  by  a  corporation. 

A  gratuitous  promise,  or  contract  for  which  there  is  no  consider- 
ation, must  be  made  by  deed;  otherwise  it  will  be  void.  This  has 
already  been  shown  to  furnish  a  distinguishing  characteristic  be- 
tween contracts  under  seal  and  simple  contracts.  It  is  unneces- 
sary to  say  more  on  the  subject. 

Under  the  old  common  law  the  rule  was  that,  with  a  few  excep- 
tions, a  corporation  could  only  contract  under  the  corporate  seal, 

B9  New  York  and  New  Jersey. 

eo  Aller  v.  Aller,  40  N.  J.  Law,  446.  See  "Contracts"  Deo.  Dig.  (Key-No.) 
i  48;   Cent.  Dig.  §  ^06. 


§    34)  NECESSITY    FOB    CONTRACT   UNDER   SEAL  75 

but  this  rule  has  long  been  repudiated  in  this  country,  and  now  a 
corporation,  unless  restricted  by  its  charter  or  by  statute,  may  con- 
tract in  the  same  manner  as  a  natural  person.  This  will  be  more 
fully  explained  in  another  connection/^ 

Conveyances  of  Land 

At  common  law,  a  conveyance  of  land  was  not  required  to  be  by 
deed,  but  in  most  jurisdictions  this  is  necessary.  It  is  not  neces- 
sary to  go  into  the  question,  as  it  belongs  more  properly  to  the 
subject  of  real  property.  Sometimes  a  seal  is  made  necessary  by 
statute  in  the  case  of  particular  contracts. 

ei  Post,  p.  241, 

I. 


76  STATUTE   OF   FRAUDS  (Ch.  4 

CHAPTER  IV 

CONTRACTS  REQUIRED  TO  BE  IN  WRITING — STATUTE  OF  FRAUDS 

35-36.     In  General  of  Requirement  of  Writing. 
o7.     Statute  of  Frauds — In  General. 

38.  Contracts  within  Section  4, 

39.  Promise  by  Executor  or  Administrator. 

40.  Promise  to  Answer  for  Debt,  Default,  or  Miscarriage  of  An 

other. 

41.  Agreement  in  Consideration  of  Marriage. 

42.  Contract  or  Sale  of  Lands. 

43.  Agreement  not  to  be  Performed  within  One  Year. 
44^9.  Form  Required. 

50-51.  Effect  of  Noncompliance. 

52-55.  Contracts  within  Section  17. 
56.  Acceptance  and  Receipt. 

57-58.  Earnest  and  Part  Payment. 

59.  Form  Required. 

60.  Effect  of  Noncompliance. 

IN  GENERAL  OF  REQUIREMENT  OF  WRITING 

35.  At  common  law,  bills  of  exchange  and  promissory  notes  must 

be  in  writing. 

36.  By  statute,  writing  is  in  some  states  declared  necessary  for  the 

following  contracts: 

(a)  Acceptance  of  a  bill  of  exchange  or  other  order  for  the  pay- 

ment of  money. 

(b)  Acknowledgment  of  a  debt  barred  by  the  statute  of  limita- 

tions. 

(c)  New  promise  by  infant  after  attaining  his  majority. 

(d)  By  the  statute  of  frauds  writing  is  necessary  in  certain  spec- 

ified contracts. 

In  the  preceding  chapter  we  have  dealt  with  those  contracts 
which  acquire  validity  by  reason  of  their  form  alone,  and  we  now 
pass  to  simple  or  parol  contracts,  which  depend  for  their  validity 
upon  the  presence  of  consideration.  As  we  have  seen,  however, 
there  are  some  simple  contracts  which,  while  not  in  the  solemn  form 
of  a  deed  or  record,  are  required  by  law  to  be  in  writing,  and  which, 
therefore,-  depend  not  only  on  the  presence  of  consideration,  as  in 
the  case  of  other  simple  or  parol  contracts,  but  also  on  their  form. 
These  contracts,  in  so  far  as  their  form  is  concerned,  we  shall  deal 
with  in  the  present  chapter. 


§§    35-36)        IN    GENERAL   OF   REQUIREMENT   OF   WRITING  77 

Independently  of  any  requirement  of  law  as  to  form,  an  agree- 
ment which  might  be  made  orally  may  require  writing,  because  of 
the  intention  of  the  parties  not  to  be  bound  until  their  agreement 
is  reduced  to  writing.  We  have  considered  the  question  in  treating 
of  ofifer  and  acceptance.^ 

Common  Law 

The  only  requirement  of  form  for  simple  contracts  which  can  be 
said  to  exist  independently  of  statute  is  in  the  case  of  negotiable 
bills  of_exchange  and  promissory  notes.  A  bill  of  exchange  is  a 
kindof  contract  which  originated  in  the  custom  of  merchants,  and 
which  is  designed  to  take  the  place  of  money,  to  some  extent,  as  a 
circulating  medium ;  and  from  its  very  nature  and  use  as  a  nego- 
tiable instrument  it  must  be  in  writing.  The  same  may  be  said  of 
promissory  notes,  which,  whether  by  statute  or  the  law  merchant, 
are  negotiable,  and  stand  on  the  same  footing  as  bills  of  exchange. 
Besides  the  mere  necessity  of  writing,  these  instruments  are  re- 
quired by  law  to  be  in  a  particular  form,  but  this  is  matter  more 
properly  for  a  work  on  negotiable  instruments. 

Statutory  Requirements  of  Form 

The  statutory  requirements  of  form  in  simple  contracts  are  main- 
ly to  be  found  in  the  statute  of  frauds,  but  before  going  into  these 
we  must  notice  some  others  which  are  not  so  general. 

At  common  law,  a  bill  of  exchange  or  other  order  for  the  pay- 
ment of  money  might  be  accepted  orally,*  but  now  by  statute  in 
England,'  and  in  most  of  the  states  in  this  country,*  the  acceptance 
is  required  to  be  in  writing. 

At  common  law,  a  contract  of  insurance  need  not  necessarily  be 
evidenced  by  a  written  policy.'  In  some  of  the  states,  however, 
statutes  have  been  enacted  prescribing  particular  forms  for  such 
contracts.® 

1  Ante,  pp.  35.  52.  «  Norton,  B.  &  N.  (3d  Ed.)  91,  99. 

«  Bills  of  Exchange  Act,  §  17. 

*  Uniform  Negotiable  Instruments  Law,  §  i;j2  (220),  now  adopted  in  more 
than  forty  states. 

6  Relief  Fire  Ins.  Co.  v.  Shaw,  94  U.  S.  574,  24  L.  Ed.  291 ;  Sanborn  v.  In- 
surance Co.,  16  Gray  (Mass.)  44S,  77  Am.  Dec.  419;  First  Baptist  Church  v. 
Insurance  Co.,  19  N.  Y.  305;  Ellis  v.  Insurance  Co.,  50  N.  Y.  402,  10  Am.  Rep. 
495;  Nebraska  &  I.  Ins.  Co.  v.  Seivers,  27  Neb.  541,  43  N.  W.  351 ;  Zell  v.  In- 
surance Co.,  75  Wis.  521,  44  N.  W.  828;  Wooddy  v.  Insurance  Co.,  31  Grat. 
(Va.)  362,  31  Am.  Rep.  732;  Putnam  v.  Insurance  Co.,  123  Mass.  324,  25  Am. 
Uep.  93;  Ilardwick  v.  Insurance  Co.,  20  Or.  547,  20  Pac.  840;  Stickley  v.  Mo- 
bile Ins.  Co.,  37  S.  C.  56,  16  S.  E.  280,  838;  Howard  Ins.  Co.  v.  Owen's  Adm'r, 
94  Ky.  197,  21  S.  W.  1037.  See  "Inaurance,"  Dec.  Dig.  {Key-No.)  §  131;  Cent. 
Dig.  §§  203-200. 

•  See  Vunc-e  on  Insurance,  p.  29. 


78  STATUTE   OF   FRAUDS  (Ch.  4 

In  some  of  the  states  an  acknowledgment  of  a  debt  barred  by  the 
statute  of  limitations  is  required  to  be  in  writing,  and  signed  by  the 
debtor,  in  order  to  take  the  debt  out  of  the  statute.'^ 

In  some  states,  a  promise  by  a  person,  after  becoming  of  age,  to 
pay  a  debt  contracted  during  his  infancy,  is  required  by  statute  to 
be  in  writing.* 

By  act  of  congress  assignments  of  patents  and  copyrights  are  re- 
quired to  be  in  writing.® 

In  most,  if  not  in  all,  the  states  there  are  statutes  regulating  the 
mode  of  conveying  land,  and  requiring  writing,  together  with  other 
formalities.  In  some  states  a  deed  is  required.  This,  -however,  is 
a  matter  more  properly  for  a  work  on  real  property.^** 


STATUTE  OF  FRAUDS 

The  famous  statute  of  frauds  and  perjuries,  29  Car.  II.  c.  3,  was 
enacted  in  England  in  1677,^^  and,  as  stated  in  its  recital,  had  for 
its  object  the  "prevention  of  many  fraudulent  practices,  which  are 
commonly  endeavored  to  be  upheld  by  perjury  and  subornation  of 
perjury." 

The  original  statute  contains  two  sections — :the  fourth  and  the 
seventeenth — which  affect  the  form  of  certain  simple  contracts.^^ 

These  sections  have  been  substantially  followed  by  the  statutes 
of  most  of  our  states,  but  in  some  states  there  are  material  varia- 
tions.    These  variations  will  be  noticed  as  we  go  along. 

As  the  seventeenth  section  differs  materially  from  the  fourth,  it 
will  be  better  to  treat  them  separately.  In  doing  so  we  shall  con- 
sider (1)  the  nature  of  the  contracts  specified,  (2)  the  form  required, 
and  (3)  the  ^ff ect  of  failure  to  comply  with  the  provisions  of  the 
statute. 

STATUTE  OF  FRAUDS— IN  GENERAL 


37.  The  statute  does  not  apply 

(a)  Contracts  created  by  law. 

(b)  Instruments    created   under,   and    deriving  their   obligation 

from,  special  statutes. 

(c)  Executed  contracts. 

7  25  Cyc.  1350.  •  Post,  p.  207. 

9  Rev.  St.  U.  S.  §§  4S98,  4955  (U.  S.  Comp.  St.  1901,  pp.  33S7,  3407). 

K'  See  Miuor  and  Wurts  on  iieai  rrupeity,  p.  GSU. 

11  8  St.  at  Large,  405. 

i3  For  the  provisions  of  sections  4  and  17,  see  post,  pp.  SO,  121. 


§    37)  STATUTE    OF   FRAUDS — IN    GENERAL  79 

Before  taking  up  in  turn  the  special  contracts  specified  in  these 
Bections,  it  is  proper  to  state  the  kinds  of  contract  generally  to 
which  the  statute  does  not  apply. 

In  the  first  place,  it  applies  only  to  contracts  made  in  fact ;  it  d^es 
not  include  so-called  contracts  created  by  law,  or  quasi  contracts. 
iCa.  dutyTs  imposed  by  law  to  pay  money  or  perform  other  duties, 
without  an  agreement  or  promise  in  fact,  no  writing  is  necessary 
to  support  an  action  on  the  implied  assumpsit.^^ 

Nor  does  the  statute  apply  to  such  instruments  as  are  created  un- 
der, and  derive  their  obligation  from,  special  statutes,  without  the 
acceptance  or  assent  of  the  party  for  whose  ultimate  benefit  they 
are  given, — as  in  the  case  of  an  undertaking  on  appeal,  the  requi- 
sites of  which  are  prescribed  by  a  special  statute.^* 

Nor  does  the  statute  have  any  eflFect  where  the  contract  has  been 
executed  on  both  sides,  for  the  purpose  of  the  statute  is  to  exclude 
parol  evidence  of  the  contracts  within  their  provisions,  and  not  to 
prohibit  execution  of  oral  contracts.  It  applies  to  executory  con- 
tracts only.^*  We  shall  see,  in  treating  of  the  particular  kinds  of 
contracts,  that  under  some  circumstances  part  performance  may 
take  them  out  of  the  statute. 

Executory  oral  agreements,  modifying  prior  written  contracts,  are 
within  the  statute  ;  ^*  and  they  may  not  be  proved,  for  the  admission 

13  Goodwin  v.  Gilbert,  9  Mass.  510;  Arnold  v.  Garst,  16  R.  I.  4,  11  Atl.  167; 
Pike  V.  Brown,  7  Cush.  (Mass.)  133 ;  Sage  v.  Wilcox,  6  Conn.,  at  page  SI ; 
Smith  V.  Bradley,  1  Root  (Conn.)  150;  Howard  v.  Whitt  (Ky.)  2  S.  W.  77G : 
post,  p.  119,  note  90.  See  "Frauds,  Statute  of,"  Dec.  Dig,  (Key-Xo.)  §§  124, 
125;  Cent.  Dig.  §§  275-mV2. 

1*  Thompson  t.  Blanchard,  3  N.  Y.  335;  Doolittle  v.  Dininny,  31  N.  Y.  350. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  121;  Cent.  Dig.  §§  1J,0,  269. 

15  STONE  V.  DENNISON,  13  Pick.  (Mass.)  1,  23  Am.  Dec.  G54,  Throckmor- 
ton, Cas.  Contracts,  54;  Lord  Bolton  v.  Tomlin,  5  Adol.  &  El.  856;  Brown 
V.  Trust  Co.,  117  N.  Y.  266,  22  N.  E.  952 ;  Schultz  v.  Noble,  77  Cal.  79,  19  Pac. 
182 ;  Swanzey  v.  Moore,  22  111.  63,  74  Am.  Dec.  134 ;  James,  v.  Morey,  44  111. 
352;  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819;  Webster  v. 
Le  Compte,  74  Md.  249,  22  Atl.  232;  Baldock  v.  Atwood,  21  Or.  73,  26  Pac. 
1058;  Pireaux  v.  Simon,  79  Wis.  392,  48  N.  W.  674;  Anderson  School  Tp.  v. 
Milroy  Lodge,  130  Ind.  108,  29  N.  E.  411,  30  Am.  St  Rep.  206;  Doherty  v. 
Doe,  18  Colo.  456,  33  Pac.  165;  Lagerfelt  v.  McKie,  100  Ala.  430,  14  South. 
281 ;  nation  v.  Cale,  152  Iowa,  485,  132  N.  W.  1101  (contract  for  digging  and 
use  of  ditch  through  land  of  another) ;  James  v.  Manning,  79  Kan.  830,  101 
Pac.  628;  Kuhn  v.  Poole,  27  Okl.  534,  112  Pac.  962  (contract  for  construction 
and  use  of  party  wall).  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  ISO; 
Cent.  Di'j.  §§  S3.',S>il. 

i«  Stead  V.  Dawber,  10  Adol.  &  E.  57;  Marshall  v.  Lynn,  6  Mees.  &  W.  109; 
Swain  V.  Seamens,  9  Wall.  254,  19  U  Ed.  554;  Hill  v.  Blake,  97  N.  Y.  216; 
Abeil  V.  Munson,  18  Mich.  306,  100  Am.  Dec.  165;  Burns  v.  Real-Estate  Co., 
fi2  Minn.  31,  53  N.  W.  1017;  Wulter  v.  Victor  G.  Bloede  Co.,  94  Md.  80,  50 


80  STATUTE   OF   FRAUDS  (Ch.  4 

of  such  evidence  could  only  be  for  the  purpose  of  showing  a  con- 
tract part  of  which  is  not  in  writing.^^  Where  such  agreements 
have  been  executed,  however,  they  may  be  proved,  for  the  purpose 
of  the  statute  is  only  to  prevent  the  enforcement  of  executory  oral 
agreements.^* 

So  a  subsequent  oral  agreement  for  the  rescission  or  waiver  of 
the  original  written  contract  is  valid,  where  it  is  clearly  proved  and 
nothing  further  remains  to  be  done  by  the  parties  for  its  complete 
execution.^* 


SAME— CONTRACTS  WITHIN  SECTION  4 

38.  The  fourth  section  of  the  English  statute,  which  has  been  sub- 
stantially followed  in  most  of  the  states,  enacts  that  "No 
action  shall  be  brought, 

(a)  "Whereby  to  charge  any  executor  or  administrator  upon  any 

special  promise,  to  answer  damages  out  of  his  own  estate ; 

(b)  "Or  whereby  to  charge  the  defendant  upon  any  special  prom- 

ise to  answer  for  the  debt,  default,  or  miscarriages  of  an- 
other person ; 

(c)  "Or  to  charge  any  person  upon  any  agreement  made  upon 
.    consideration  of  marriage; 

(d)  "Or  upon  any  contract  or  sale  of  lands,  tenements,  or  here- 

ditaments, or  any  interest  in  or  concerning  them ; 

(e)  "Or  upon  any  agreement  that  is  not  to  be  performed  within 

the  space  of  one  year  from  the  making  thereof; 
"Unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith, 
or  some  other  person  thereunto  by  him  lawfully  author- 
ized." 2  0 

Atl.  433.  Contra:  Cummings  v.  Arnold,  3  Mete.  (Mass.)  4S6,  37  Am.  Dec. 
155 ;  Stearns  v.  Hall,  9  Cush.  (Mass.)  31 ;  Whittier  v.  Dana,  10  Allen  (Mass.) 
-326;  Negley  v.  Jeffers,  28  Ohio  St.  90.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  131;  Cent.  Dig.  §§  2S3,  2SJ,. 

17  Bonicamp  v.  Starbuck,  25  Okl.  483,  106  Pac.  839.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  131;  Cent.  Dig.  §§  283,  2SJ^. 

18  Blake  v.  J.  Neils  Lumber  Co.,  Ill  Minn.  513,  127  N.  W.  450;  Gerard-Fillio 
Co.  V.  McNair,  68  Wash.  321,  123  Pac.  462.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  131;  Cent.  Dig.  §§  283,  28Jt. 

19  Warden  v.  Bennett,  145  Ky.  325,  140  S.  W.  538;  Gerard-Fillio  Co.  v.  Mc- 
Nair, 68  Wash.  321,  123  Pac.  462.  And  see  post,  p.  533.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  l.',0;  Cent.  Dig.  §§  156,  SJ,2. 

2«S  St.  at  Large,  405. 


§  40)    PROMISE  TO  ANSWER  FOR  DEBT,  ETC.,  OF  ANOTHER       81 


SAME— PROMISE   BY  EXECUTOR  OR  ADMINISTRATOR 

39,  The  statute  applies  only  to  promises —  ^' 

(a)  To  answer  for  debts  or  liabilities  of  the  deceased,  and 

(b)  To  answer  for  them  out  of  the  property  of  the  promisor. 

An  executor  or  administrator  may  sue  or  be  sued  upon  obliga- 
tions devolving  upon  him  as  the  representative  of  the  deceased, 
and  he  may  be  compelled  to  carry  out  the  directions  of  the  deceased 
in  respect  of  legacies,  or  to  give  effect  to  the  rules  of  law  relating 
to  the  division  of  the  estate  of  an  intestate ;  but  in  neither  case  is 
he  bound  to  pay  anything  out  of  his  own  pocket.  His  liabilities  are 
limited  by  the  assets  of  the  deceased.  He  may,  however,  if  he 
chooses,  to  save  the  credit  of  the  deceased,  or  for  any  other  reason, 
make  promises  to  answer  for  damages  or  pay  debts — which  is  in- 
cluded in  the  expression,  "answer  damages" — out  of  his  own  es- 
tate; but,  in  order  that  the  promise  may  be  binding  on  him,  it 
must  be  in  writing,  signed  by  him  or  his  agent. 

The  statute  only  applies  to  promises  to  answer  for  debts  or  lia- 
bilities of  the  decedent.  It  does  not  apply  to  original  undertak- 
ings by  the  executor  or  administrator,  and  a  promise,  therefore,  by 
an  executor  to  pa}^  the  heir  money  if  he  will  forbear  further  oppo- 
sition to  the  probate  of  the  will,  is  not  within  the  statute. ^^  Nor 
does  it  apply  to  promises  to  pay  debts  of  the  decedent  out  of  the 
assets  of  the  estate. ^^ 


SAME— PROMISE  TO  ANSWER  FOR  DEBT,  DEFAULT,  OR 
MISCARRIAGE  OF  ANOTHER 

40.  The  following  points  should  be  noted : 

(a)  The  debt,  default,  or  miscarriage  must  be  that  of  "another 

person,"  and,  therefore,  for  the  statute  to  apply, 

(1)   There  must  be  either  a  present  or  prospective  primary 

liability    of   a   third   person   for   which   the   promisor 

agrees  to  answer.    He  must  not  himself  be  or  become 

primarily  liable. 

«i  BELLOWS  V.  SOWLES,  57  Vt.  1G4.  r>2  Am.  Rop.  US,  Tlirockniorton, 
Cas.  Contracts,  5G.  And  see  Feblinger  v.  Wood,  134  Pa,  517,  19  Atl.  74G; 
Wales  V.  Stout,  115  N.  Y.  0.38.  21  N.  E.  1027;  Mackin  v,  Dwyer,  20,T  Mass. 
472,  91  N.  E.  S.O.'J;  P.lalce  v.  Robinson,  129  Iowa,  IDG,  105  N.  W.  401.  -SVe 
"Fraudu,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  7-12;  Cent.  Dig.  §§  7-/2. 

22  stebbiiis  V.  .*<uiitb.  4  Tick.  (Mass.)  07;  Pratt  v.  lluiiiplirey,  22  Conn.  317. 
Bee  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-So.)  §§  7-22;  Cent.  Dig.  §§  1-12. 
Clabk  Cont.(3d  Ed.) — 6 


82  STATUTE   OF   FRAUDS  (Ch.  4 

(2)  The  liability  of  the  third  person,  therefore,  must  con- 
tinue. 

(b)  A  promise  which  contemplates  payment  out  of  the  debtor's 

property  in  the  hands  of  the  promisor  is  not  within  the 
statute. 

(c)  Nor  is  a  promise  to  the  debtor  to  pay  his  debt. 

(d)  Nor,  according  to  the  weight  of  authority,  does  the  statute 

apply  where  the  leading  object  of  the  promisor  is  to  sub- 
serve some  purpose  of  his  own,  and  his  promise  is  merely 
incidental. 

(e)  By  the  weight  of  authority  a  contract  of  indemnity  is  not 

within  the  statute,  although  if  the  promise  is  to  answer  for 
another's  debt,  it  is  within  the  statute,  notwithstanding  it 
is  in  the  form  of  a  contract  of  indemnity. 

"Debt,  Default,  or  Miscarriage" 

The  words  "debt,  default,  or  miscarriage"  include  all  liabilities 
of  a  third  person,  however  they  may  arise,  and  therefore  include 
liabilities  arising  out  of  a  wrong  or  tort,  as  well  as  those  arising 
out  of  contract.^^  They  also  include  prospective  as  well  as  existing 
liabilities.  "If  the  future  primary  liability  of  a  principal  is  contem- 
plated as  the  basis  of  the  promise  of  a  guarantor,  such  promise  is 
within  the  statute  of  frauds,  precisely  as  it  would  be  if  the  liability 
existed  when  the  promise  was  made."  "  Nor  does  it  matter  that  the 
debt  or  obligation  of  the  third  party  is  voidable  by  him.^* 

"Of  Another  Person" 

The  promise  contemplated  by  the  statute  is  a  promise  to  answer 
for  the  debt,  default,  or  miscarriage  of  "another  person;"  or,  in 
other  words,  a  contract  of  guaranty  or  suretyship.  The  statute  does 
not  apply  to  original  promises  or  undertakings,  though  the  benefit 
accrues  to  another  than  the  promisor.     There  must  be  three  par- 

23  Kirkham  v.  Marter,  2  Barn.  &  Aid.  613,  18  E.  O.  L.  212,  21  Rev.  Rep.  416; 
Turner  v.  Hubbell,  2  Day  (Conn.)  457,  2  Am.  Dec.  115 ;  Mountstephen  v.  Lake- 
man,  L.  R.  7  Q.  B.  202.  A  promise,  bowever,  to  give  notice  to  another  before 
settling  with  a  third  party  who  is  indebted  to  the  promisee  is  not  within 
the  statute.  Towne  v.  Grover,  9  Pick.  (Mass.)  306.  See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §  14;  Cent.  Dig.  §  14. 

24  Mead  v.  Watson,  57  Vt.  426.  And  see  Matson  v.  Wharam,  2  Term  R. 
SO ;  Matthews  v.  Milton,  4  Yerg.  (Tenn.)  576,  26  Am.  Dec.  247.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  14;  Cent.  Dig.  §  I4. 

25  Dexter  v.  Blanchard,  11  Allen  (Mass.)  365;  Brown  v.  Farmers'  &  Mer- 
chants' Nat.  Bank,  88  Tex.  265,  31  S.  W.  285,  33  L.  R.  A.  359  and  note. 
Contra,  King  v.  Summitt,  73  Ind.  312,  38  Am.  Rep.  145.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §§  I4,  15;  Cent.  Dig.  §§  14-I6. 


§  40)    PROMISE  TO  ANSWER  FOR  DEBT,  ETC.,  OF  ANOTHER       83 

ties  in  contemplation, — a  person  who  is  actually  or  prospectively 
liable  to  another  person,  and  a  third  person  who  promises  the  cred- 
itor to  answer  for  the  debt  or  liability ;  or,  in  other  words,  a  cred- 
itor, a  principal  debtor,  and  a  guarantor  of  the  debt,  or  surety.^* 
This  distinction  is  well  illustrated  by  an  old  case  in  which  it  was 
held  that  a  promise  to  pay  if  the  promisee  wjll  lend  money  to  a 
third  peraoiLis  within  the  statute,  but  a  promise  to  pay  if  the  prom- 
isee will  pay  money  to  a  third  person  is  without. ^^  Although  there 
is  considerable  conflict  among  the  courts  in  their  construction  of 
this  clause  of  the  statute,  the  following  rules  for  determining 
whether  a  contract  comes  within  it  are  established  by  the  weight 
of  authority : 

(a)  There  must  be  either  a  present  or  prospective  liability  of  a 
third  person  for  which  the  promisor  agrees  to  answer.^'  If  the 
promisor  becomes^himself  primarily,  and  not  collaterally,  liable,  the 
promise  is  not  within  the  statute,  though  the  benefit  from  the  trans- 
action accrues  to  a  third  person.^®  If,  for  instance,  two  persons 
come  into  a  store,  and  one  buys,  and  the  other,  to  gain  him  credit, 
promises  the  seller,  'Tf  he  does  not  pay  you,  I  will,"  this  is  a  collat- 
eral undertaking,  and  must  be  in  writing;  but  if  he  says,  "Let  hjm 
have  the  goods,  and  I  will  pay,"  or  "I  will  see  you  paid,"  and  credit 
is  given  to  him  alone,  he  is  himself  the  buyer,  and  the  undertaking 
is  original. ^°    In  other  words,  whether  the  promise  in  such  a  case  is 

2  8  NUGENT  V.  WOLFE,  111  Pa.  471,  4  Atl.  15,  56  Am.  Rep.  291,  Throck- 
morton, Cas.  Contracts,  62.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.) 
§  21;  Cent.  Dig.  §  33. 

2  7  Butcher  v.  Andrews,  Comberbach,  473  (Holt,  C.  J.).  See  "Frauds,  Statute 
of;:  Dec.  Dig.   (Key-No.)   §§  20,  21;   Cent.  Dig.   §§  32,  S3. 

2  8  Mease  v.  Wagner,  1  McCord  (S.  C.)  395.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  15;  Cent.  Dig.  §§  15,  16. 

29  Ilargreaves  v.  Parsons,  13  Mees.  &  Wels.  501;  Baldwin  v.  Hiers,  73  Ga. 
739;  Morris  v.  Osterhout,  55  Mich.  262,  21  N.  W.  339;  De  Witt  v.  Root,  18 
Neb.  r)(j7,  26  N.  W.  300.  Where  an  agent  has  become  liable  to  his  principal 
by  lending  money  contrary  to  instructions,  his  guaranty  of  the  loan  is  not 
within  the  statute.  Crane  v.  Wheeler,  48  Minn.  207,  50  N.  W.  1033.  A  promise 
by  a  married  woman  to  pay  her  parent  for  her  support  was  held  a  promise 
to  pay  her  husband's  debt,  Perkins  v.  Westcoat,  3  Colo.  App.  338,  33  Pac.  139. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  23;  Cent.  Dig.  §§  18,  19. 

30  LAK.SON  V.  JENSEN,  53  Mich.  427,  19  N.  W.  130,  Throckmorton,  Cas. 
Contracts,  00;  Hartley  v.  Varner,  88  HI.  501;  Nelson  v.  Boynton,  3  Mete. 
(Mass.)  390,  37  Am.  Dec.  148;  Greene  v.  Burton,  59  Vt.  423,  10  AU,  575;  Geelan 
V.  Reid,  22  111.  App.  105;  Higgins  v.  Hallock,  00  Hun,  125,  14  N.  Y.  Supp. 
G.jO;  Bo-ston  v.  P^arr,  148  Pa.  220,  23  Atl.  901;  Crowder  v.  Keys,  91  Ga.  180, 
16  S.  E.  980;  Burns  v.  Bradford-Kennedy  Lumber  Co.,  61  Wash.  276,  112 
Pac.  359.  The  same  is  true  where  a  person  says:  "If  I  am  to  do  certain 
work  for  M.,  I  must  bd  assured  of  payment  by  some  one,"  and  the  person 
addressed  says,  "Do  It,  and  I  will  see  you  paid."     Mouutstephen  y.  Lakeman, 


84  STATUTE   OF   FRAUDS  (Ch.  4 

within  the  statute  depends  on  how  the  credit  was  given.  If  it  was 
given  exclusively  to  the  promisor,  his  undertaking  is  original  ;^^ 
but  it  is  collateral  if  any  credit  was  given  to  the  other  party. *^  So 
an  oral  acceptance  of  a  bill  of  exchange  or  other  order  for  the  pay- 
ment of  money  is  not  within  the  statute,  for  the  reason  that  the  ac- 
ceptor becomes  the  party  primarily  liable  on  the  instrument. ^^ 

(b)  Even  though  there  is  an  existing  liability  of  a  third  person 
for  which  the  promisor  undertakes  to  answer,  still  the  promise  is 
not  within  the  statute  if  the  terms  are  such  that  it  effects  an  extin- 
guishment of  such  liability;  in  other  words,  the  liability  of  the 
original  debtor  must  continue.  A  promise  to  pay  another's  debt 
in  consideration  of  the  creditor's  doing  something  which  will  ex- 
tinguish his  claim  against  the  debtor,  and  release  him  absolutely, 

L  R.  7  H.  L.  17.  And  see  cases  cited  above  and  In  the  following  notes.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  23;  Cent.  Dig.  §§  18,  19. 

31  Chase  v.  Day,  17  Johns.  (N.  Y.)  114;  Hartley  v.  Varner,  88  111.  561;  Myer 
V.  Grafflln,  31  Md.  350,  100  Am.  Dec.  66;  Grant  v.  Wolf,  34  Minn.  32,  24  N. 
W.  289;  Ellis  v.  Murray,  77  Ga.  542;  Hagadorn  v.  Stronach  Lumber  Co.,  81 
Mich.  50,  45  N.  W.  650;  Peyson  v.  Conniff,  32  Neb.  269,  49  N.  W.  340;  Mackey 
V.  Smith,  21  Or.  598,  28  Pac.  974 ;  Herendeen  Mfg.  Co.  v.  Moore,  66  N.  J.  Law, 
74,  48  Atl.  525;  Lusk  v.  Throop,  189  111.  127,  59  N.  E.  529.  Where  defendant 
gave  plaintiff  directions  to  give  his  (defendant's)  subcontractors  material,  and 
charge  it  to  them,  which  was  done,  and  every  month  he  (defendant)  would 
pay  the  bill,  it  was  held  not  to  show  that  credit  was  given  the  subcontractors, 
and  that  the  undertaldng  was  original.  Maurin  v.  Fogelberg,  37  Minn.  23,  32 
N.  W.  858,  5  Am.  St.  Rep.  814.  And  see  Owen  v.  Stevens,  78  111.  462;  Schoen- 
feld  v.  Brown,  78  111.  487,  See  "\Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  § 
26;  Cent.  Dig.  §§  S5-42V2. 

82  Birkmyr  v.  Darnell,  2  Ld.  Raym.  1085,  Mod.  248,  3  Salk.  27,  Holt  606.  92 
Eng.  Reprint,  219,  1  Sm.  L.  C.  (11th  Ed.)  299;  Welch  v.  Marvin,  36  Mich. 
59;  Cahill  v.  Bigelow,  18  Pick.  (Mass.)  309;  Norris  v.  Graham,  33  Md.  56; 
Northern  Cent.  Ry.  Co.  v.  Prentiss,  11  Md.  119 ;  Aldrich  v.  Jewell,  12  Vt  125, 
36  Am.  Dec.  330;  Matthews  v.  Milton,  4  Yerg.  (Tenn.)  576,  26  Am.  Dec.  247; 
Baldwin  v.  Hiers,  73  Ga.  739;  Blank  v.  Dreher,  25  111.  331;  Langdon  v.  Rich- 
ardson, 58  Iowa,  610,  12  N.  W.  622;  Bugbee  v,  Kendricken,  130  Mass.  437; 
Mead  v.  Watson,  57  Vt.  426;  Studley  v.  Barth,  54  Mich.  6,  19  N.  W.  56S; 
Robertson  v.  Hunter,  29  S.  C.  9,  6  S.  E.  850;  Harris  v.  Frank,  81  Cal.  280, 
22  Pac.  856;  Rottmann  v.  Pohlmann,  28  Mo.  App.  399;  Clark  v.  Jones,  87 
Ala.  474,  6  South.  362 ;  Waters  v.  Shafer,  25  Neb.  225,  41  N.  W.  181 ;  Swaboda 
V.  Throgmorton-Bruce  Co.,  88  Ark.  592,  115  S.  W.  380;  Johnson  v.  Bank,  60 
W.  Va.  320,  55  S.  E.  394,  9  Ann.  Cas.  893,  and  note ;  Wood  v.  Dodge,  23  S.  D. 
95,  120  N.  W.  774 ;  Peele  v.  Powell,  156  N.  C.  553,  73  S.  E.  234.  The  question 
whether  the  promise  is  original  or  collateral  is  usually  one  for  the  jury,  under 
instructions  from  the  court.  Johnson  v.  Bank,  supra ;  McGowan  Commercial 
Co.  v.  Midland  Goal  &  Lumber  Co.,  41  Mont  211,  108  Pac.  655.  Sec  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  26;  Cent.  Dig.  §§  S5-42yo. 

83  Edward  Hines  Lumber  Co.  v.  Anderson,  141  111.  App.  527.  See  ante,  p. 
77.     See  "Frauds,  Statute  of,"  Dec.  Big.  (Key-No.)  §  27;    Cent.  Dig.  §§  43,  V/- 


§    40)         PEOMISE   TO    ANSWEK    FOR    DEBT,  ETC.,  OF   ANOTHER 


85 


need  not  be  in  writing.'*  To  take  the  promise  out  of  the  statute, 
the  original  debtor's  release  must  be  absolute.  If  the  creditor  may 
still  hold  him  liable  at  his  option,  the  promise  must  be  in  writing.^* 
Novations  fall  within  this  class  of  agreements. 

(c)  The  promise  must  contemplate  payment  by  the  promisor  out 
of  his  own  property,  or,  at  least,  not  out  of  the  property  of  the 
debtor,  from  which,  or  from  the  proceeds  of  which,  the  promisor  is 
under  a  duty  to  pay,  or  is  authorized  to  pay ;  for  in  such  a  case  the 
payment  is,  in  effect,  by  the  debtor.'*  The  statute  has  no  applica- 
tion to  "cases  where  the  original  debtor  places  property  of  any  kind 
in  the  hands  of  a  third  person,  and  that  person  promises  to  pay  the 
claims  of  a  particular  creditor  of  the  debtor.  The  promise, 'in  such 
case,  is  an  original  promise,  and  the  property  placed  in  his  hands  is 

34  Bird  V.  Gammon,  2  Binjx.  N.  C.  8S3;  Anstey  v.  Marden,  1  B.  &  P.  New  Rep. 
124 ;  Goodman  v.  Chase,  1  Barn.  &  Aid.  297 ;  Peeters  V.  Lamborn,  43  Ohio  St. 
144,  1  N.  E.  513;  Andre  v.Bodman.  13  Md.  241,  71  Am.  Dec.  628;  Merideu 
I^ritannia  Co.  v.  Ziugsen,  48  N.  Y.  247,  8  Am.  Rep.  549;  Runde  v.  Runde,  59 
111.  98;  Green  v.  Solomon,  80  Mich.  234,  45  N.  W.  87;  Carlisle  v.  Campbell,  70 
Ala.  247;  Palmer  v.  Witcherly,  15  Neb.  98,  17  N.  W.  364;  Eden  v.  Chaffee. 
IGO  Mass.  225,  35  N.  E.  G75 ;  Hamlin  v.  Drummond,  91  Me.  175,  39  Atl.  551; 
Ferst  V.  Bank,  111  Ga.  229,  36  S.  E.  773;  Hanson  v.  Nelson,  82  Minn.  220,  84 
N.  W.  742.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  31;  Cent.  Dig.  §§ 
47,  48. 

35  Nelson  v.  Boynton,  3  Mete.  (Mass.)  396,  37  Am,  Dec.  148 ;  Waggoner  v. 
Gray's  Adm'rs,  2  Hen.  &  M.  (Va.)  612;  Pfaff  v.  Cummings,  67  Mich.  143,  34 
N.  W.  281 ;  Gray  v.  Herman,  75  Wis.  453,  44  N.  W.  248,  6  L.  R.  A.  691 ;  Murto 
V.  McKnight,  28  111.  App.  238;  Miller  v.  Lynch,  17  Or.  61,  19  Pac.  845;  Brant 
V.  Johnson,  46  Kan.  389,  26  Pac.  735 ;  Riegelman  v.  Focht,  141  Pa.  380,  21  Atl. 
601,  23  Am.  St.  Rep.  293 ;  Greene  v.  Latcham,  2  Colo.  App.  416,  31  Pac.  233. 
The  fact  that  a  lien  against  the  original  debtor  is  released  has  been  held  im- 
material if  the  debtor  himself  remains  liable.  Nelson  v.  Boynton,  supra ; 
Mallory  v.  Gillett,  21  N.  Y.  412.  See  post,  p.  S7.  A  promise  to  pay  another's 
debt  merely  if  the  promisee  will  forbear  to  sue  the  debtor,  which  he  does,  is 
within  the  statute.  Gump  v.  llalberstadt,  15  Or.  356,  15  Pac.  467  (collecting 
cases  on  this  point) ;  Watson  v.  Randall,  20  Wend.  (N.  Y.)  201 ;  White  v.  Rin- 
toul,  108  N.  Y.  222,  15  N.  E.  318.  And  see  Keadle  v.  Siddens,  5  Ind.  App.  8. 
31  N.  E.  539;  Dillaby  v.  Wilcox,  60  Conn.  71,  22  Atl.  491,  13  L.  R.  A.  643,  25 
Am.  St.  Rep.  209;  Parker  v.  Dillingham,  129  Ind.  542,  29  N.  E.  23.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  {Keti-No.)  §  31;  Cent.  Dig.  §§  J,7,  J,S. 

38  Williams  v.  Leker,  3  Burr.  1886;  Dock  v.  Boyd,  93  Pa.  92;  Farley  v.  Cleve- 
land, 4  Cow.  (\.  Y.)  4.32,  15  Am.  Dec.  387;  Peck  v.  (JotT,  18  R.  I.  94,  25  Atl. 
690;  Woodruff  v.  Scaife,  83  Ala.  152,  3  South.  311;  Belknap  v.  Bender,  75  N. 
Y.  446,  31  Am.  Rep.  476;  Ackley  v.  Parmenter,  98  N.  Y.  425,  50  Am.  Rep.  693; 
Hughes  V.  Fisher,  10  Colo.  383,  15  Pac.  702;  Fehlinger  v.  Wood,  134  Pa.  517, 
19  Atl.  746;  I^ake  v.  Ball,  116  Ind.  214,  17  N.  E.  918;  Silsby  v.  Frost,  3 
Wash.  T.  3K8,  17  Pac.  887;  Ledbetter  v.  McGhees,  84  Ga.  227,  10  S.  E.  727; 
Mitts  V.  Mc.Morran,  85  Mich.  94.  48  N.  W.  2.SS;  Keyes  v.  Allen,  65  Vt.  667. 
27  Atl.  319.  Hut  see  Gower  v.  Stuart,  40  Mich.  747;  Frame  v.  August,  SS 
111.  424.     See  "I^rauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  SI,;  Vent.  nig.  §  51,. 


86  STATUTE   OF   FRAUDS  •  (Ch.  4 


its  consideration.    In  this  class  of  cases  it  is  immaterial  whether  the 
liability  of  the  original  debtor  continues  or  not."  ^^ 

(d)  A  promise  to  pay  another's  debt,  to  come  within  the  statute, 
must  be  made  to  the  creditor,  and  not  to  the  debtor.  A  promise  to 
the  debtor  himself  to  pay  his  debt  for  him  does  not  require  writ- 
ing.^^  Illustrations  of  this  are  where  a  person  buys  land  or  goods, 
and  agrees  to  pay  the  purchase  money  to  a  creditor  of  the  seller,  or, 
as  part  of  the  consideration,  assumes  a  mortgage  or  other  indebted- 
ness of  the  seller.  This  is  no  more  than  a  promise  to  pay  the  prom- 
isor's own  debt  in  a  particular  way.^® 

(e)  "If  the  principal  and  immediate  object  of  the  transaction  is 
to  benefit  the  promisor,  not  to  secure  the  debt  of  another  person, 
the  promise  is  considered,  not  as  collateral  to  the  debt  of  another, 
but  as  creating  an  original  debt  from  the  promisor,  which  is  not 
within  the  statute,  although  one  effect  of  its  payment  may  be  to 
discharge  the  debt  of  another."  *"  Under  this  rule  the  holder  of  a 
note  or  other  security  is  bound  by  an  oral  guaranty  of  its  payment, 

8T  Wait  V.  Wait's  Ex'r,  28  Vt.  350.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  5^;  Cent.  Dig.  §  5^. 

88  Eastwood  V.  Kenyon,  11  Adol.  &  E.  438 ;  Windell  v.  Hudson,  102  Ind.  521, 
2  N.  E.  303 ;  Alger  v.  Scoville,  1  Gray  (Mass.)  391,  395 ;  Harwood  v.  Jones,  10 
Gill  &  J.  (Md.)  404,  32  Am.  Dec.  180;  Mersereau  v.  Lewis,  25  Wend.  (N.  Y.) 
243;  Ware  v.  Allen,  64  Miss.  545,  1  South.  738,  60  Am.  Rep.  67;  Wood  v. 
Moriarty,  15  R.  I.  518,  9  Atl.  427 ;  Clark  v.  Jones,  85  Ala.  127,  4  South.  771 ; 
Meyer  v.  Hartman,  72  111.  442;  Rabbermann  v.  WIskamp,  54  111.  179.  See 
'Wrauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  18;  Cent.  Dig.  §§  27-31. 

89  Barker  v.  Bucklin,  2  Denio  (N.  Y.)  45,  43  Am.  Dec.  726;  Wilson  v.  Bevans, 
58  111.  232;  Clinton  Nat.  Bank  v.  Studemann,  74  Iowa,  104,  37  N.  W.  112; 
Delp  V.  Brewing  Co.,  123  Pa.  42,  15  Atl.  871;  Bateman  v.  Butler,  124  Ind. 
223,  24  N.  E.  989;  Hooper  v.  Hooper,  32  W.  Va.  526,  9  S.  E.  937;  Skinker  v. 
Armstrong,  86  Va.  1011,  11  S.  E.  977;  Neiswanger  v.  McClellan,  45  Kan.  599, 
26  Pac.  18 ;  Morris  v.  Gaines,  82  Tex.  255,  17  S.  W.  538 ;  Tuttle  v.  Armstead, 
53  Conn.  175,  22  Atl.  677 ;  Mulvany  v.  Gross,  1  Colo.  App.  112,  27  Pac.  878 ; 
Lowe  V.  Hamilton,  132  Ind.  406,  31  N.  E.  1117 ;  American  Pencil  Co.  v.  Wolfe, 
30  Fla.  360,  11  South.  488;  Scudder  v.  Carter,  43  111.  App.  252;  Elkin  v.  Tim- 
lin, 151  Pa.  491,  25  Atl.  139;  First  Nat.  Bank  of  Sing  Sing  v.  Chalmers,  144 
N.'Y.  342,  39  N.  E.  331.  See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  18; 
Cent.  Dig.  §§  27-31. 

40  Furbish  v.  Goodnow,  98  Mass.  296,  per  Gray,  J.  And  see  Prime  v.  Koeh- 
ler,  77  N.  Y.  91 ;  Howell  v.  Harvey,  65  W.  Va.  310,  64  S.  E.  249,  22  L.  R.  A. 
(N.'  S.)  1077;  Emerson  v.  Slater,  22  How.  28,  16  L.  Ed.  360;  Little  v.  Edwards, 
69  Md.  499,  10  Atl.  134 ;  Davis  v.  Patrick,  141  U.  S.  479,  12  Sup.  Ct.  58,  35 
L.  Ed.  826;  Mitchell  v.  Beck,  88  Mich.  342,  50  N.  W.  305;  First  Nat.  Bank 
of  Sing  Sing  v.  Chalmers,  120  N.  Y.  658,  24  N.  E.  848;  Ferst  v.  Bank  of 
Waycross,  111  Ga.  229,  36  S.  E.  773.  An  oral  promise  by  an  attorney  to 
prosecute' a  suit  and  pay  all  the  cost,  and,  if  successful,  to  have  half  the 
amount  recovered,  otherwise  nothing,  was  held  not  within  the  statute.  Wil- 
dey  V.  Crane,  69  Mich.  17,  36  N.  W.  734.    A  contract  of  reinsurance  has  been 


§    40)  PROMISE   TO    ANSWER   FOE    DEBT,  ETC.,  OF   ANOTHER  87 

made  for  the  purpose  of  inducing  another  to  purchase  it.*^  So  the 
promise  by  a  del  credere  agent  to  his  principal  to  guaranty  the  sol- 
vency of  the  persons  to  whom  he  sells  goods  is  not  within  the  stat- 
ute;*^ the  agent  becomes  himself  responsible  for  the  payment  of 
the  money,  and  it  is  only  incidental  that  he  expects  his  obligation 
to  be  discharged  by  the  person  to  whom  he  sells  the  goods.*^ 
Again,  if  a  creditor  has,  or  is  about  to  file,  a  lien  on  property  to  se- 
cure his  claim,  and  a  third  person,  whose  interests  are  or  may  be 
prejudiced  thereby,  guarantees  the  debt  in  consideration  of  a  re- 
lease of  the  lien  or  forbearance  to  file  it,  his  object  is  to  remove  or 
prevent  the  lien,  and  the  guaranty  is  merely  incidental,  and  some 
courts  hold  that  it  need  not  be  in  writing,**  though  the  weight  of 
authority  is  probably  to  the  contrary  where  the  liability  of  the 
debtor  continues.*"  And  it  has  even  been  held  that  where  the  own- 
er of  a  building,  on  which  the  contractor  has  abandoned  work, 
promises  to  pay  the  contractor's  workmen  what  is  due  them  from 

held  not  within  the  statute.  Bartlett  v.  Insurance  Co.,  77  Iowa,  155,  41  N. 
W.  GOl.  But  see,  contra,  Egan  v.  Insurance  Co.,  27  La.  Ann.  308.  See  ''Frauds, 
Statute  of;'  Dec.  Dig.  (Key-No.)  §  33;  Cent.  Dig.  §§  50-53,  56. 

41  Brown  v.  Curtiss,  2  N.  Y.  225;  Millis  v.  Rich,  80  N.  Y.  2G9,  36  Am.  Rep. 
615;  Cardell  v.  McNiel,  21  N.  Y.  338;  Darst  v.  Bates,  95  111.  493,  at  page  512. 
And  see,  in  case  of  assignment  and  guaranty  of  judgment,  Little  v.  Edwards, 
69  Md.  499,  16  Atl.  134.  So,  also,  where  a  person  having  property  of  his 
debtor  to  sell  for  payment  of  the  debt  guaranties  the  title  to  Induce  the 
promisee  to  buy  it.  Farnham  v.  Chapman,  61  Vt.  395,  18  Atl.  152.  But  see 
Dows  V.  Swett,  134  Mass.  142,  45  Am.  Rep.  310.  See  '''Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §  33;  Cent.  Dig.  §§  50-53,  56. 

42  Couturier  v.  Hastie,  8  Exch.  40,  5  II.  L.  Cas.  673;  Sherwood  v.  Stone, 
14  N.  Y.  267;  Wolfif  v.  Koppel,  5  Hill  (N.  Y.)  458;  Id.,  2  Denio,  368,  43  Am. 
Dec.  751 ;  Swan  v.  Nesmith,  7  Pick.  (Mass.)  220,  19  Am.  Dec.  282.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  S3;  Cent.  Dig.  §§  50-53,  56. 

43  Wolff  V.  Koppel,  supra.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  § 
S3;  Cent.  Dig.  §§  50-53,  56. 

44  Fitzgerald  v.  Dressier,  7  C.  B.  (N.  S.)  374;  Smith  v.  Exchange  Bank,  110 
Pa.  508,  1  Atl.  760;  Wills  v.  Brown,  118  Mass.  138;  Prime  v.  Koehler,  77  N. 
Y.  91;  Dunlap  v.  Thome,  1  Rich.  (S.  C.)  213;  Shook  v.  Vanmater,  22  Wis. 
532;  Crawford  v.  King,  54  Ind.  6;  Helt  v.  Smith,  74  Iowa,  667,  39  N.  W. 
81;  Rogers  v.  Hardware  Co.,  24  Neb.  653,  39  N.  W.  844;  Scott  v.  White,  71 
111.  287;  Borchsenius  v,  Canutson,  100  111.  82;  Power  v.  Rankin,  114  111.  52, 
29  N.  E.  185;  Wooten  v.  Wilcox,  87  Ga.  474,  13  S.  E.  595;  Flagler  v.  Lipman, 
1  Misc.  Rep.  204,  20  N.  Y.  Supp.  878.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  33;  Cent.  Dig.  §§  50-53,  56. 

46  Nelson  v.  Boynton,  3  Mete.  (Mass.)  396,  37  Am.  Dec.  148;  Curtis  v.  Brown, 
5  Cu.sh.  (Mass.)  488;  Mallory  v.  Gillett,  21  N.  Y.  412;  Bunneman  v.  Wagner, 
16  Or.  4.33,  18  Pac.  841,  8  Am.  St.  Rep.  300;  Clark  v.  Jones,  85  Ala.  127,  4 
South.  771 ;  Stewart  v.  Jerome,  71  Mich.  201,  38  N.  W.  895,  15  Am.  St  Rep. 
252;  Warner  v.  Willoughby,  60  Conn.  468,  22  Atl.  1014,  25  Am.  St.  Rep.  343; 
Slmp.son  V.  Harris,  21  Nev.  353,  31  Pac.  1009.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  55;  Cent.  Dig.  §§  50-53,  56. 


88  STATUTE   OF   FRAUDS  (Ch.  4 

the  contractor  if  they  will  go  on  with  the  work,  the  undertaking  is 
original;  *'  but  this  decision  is  a  very  doubtful  one.  The  contrary 
has  repeatedly  been  held.*^ 

But  the  mere  receipt  by  the  promisor  of  some  consideration  or 
benefit  for  his  promise  is  not  sufficient  to  take  it  out  of  the  statute, 
if  the  principal  object  of  the  contract  is  to  pay  the  debt  of  an- 
other.*« 

Promise  to  Indemnify 

There  is  no  subject  connected  with  the  statute  of  frauds  that  is 
more  difficult  or  has  given  rise  to  greater  variety  of  opinion  than 
contracts  of  indemnity.  Is  a  promise  to  indemnify  or  save  another 
harmless  from  any  liability  that  he  may  incur  as  the  result  of  a 
transaction  into  which  he  enters  at  the  instance  of  the  promisor — 
as  in  the  case  of  a  promise  to  indemnify  the  promisee  against  loss 
from  going  bail  for  another — within  the  statute?  In  England,** 
and  by  the  decided  weight  of  authority  in  this  country/'*  such  con- 

46  Andre  v.  Bodman,  13  Md.  241,  71  Am.  Dec.  62S  (in  this  case  the  claim 
against  the  contractor,  it  seems,  was  given  up,  so  that  there  no  longer  ex- 
isted any  primary  liability  of  a  third  person) ;  Crawford  v.  Edison,  45  Ohio 
St.  239,  13  N.  E.  80 ;  Greenough  v.  Eichholtz  (Pa.  Sup.)  15  Atl.  712 ;  Buchanan 
V.  Moran,  62  Conn.  83,  25  Atl.  39G;  Craft  v.  I\:endrick,  39  Fla.  90,  21  South. 
803;  Hall  v.  Alford,  105  Ky.  664,  49  S.  W.  444;  Raabe  v.  Squier,  148  N.  T. 
81,  42  N.  E.  516 ;  Almond  v.  Hart,  46  App.  Div.  431,  61  N.  Y.  Supp.  849.  And 
see  Sext  v.  Geise,  80  Ga.  698,  6  S.  E.  174  (where  the  promise  was  to  pay 
for  material) ;  Bice  v.  Building  Co.,  96  Mich.  24,  55  N.  W.  382.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  {Key-No.)  §§  SI,  32;  Cent.  Dig.  §§  ^7-49. 

47  See  Farnham  v.  Davis,  79  Me.  282,  9  Atl.  725;  Greene  v.  Latcham,  2 
Colo.  App.  416,  31  Pac.  233 ;  Hutton  Bros.  v.  Gordon,  2  Misc.  Rep.  267,  23  N. 
Y.  Supp.  770 ;  Wilhelm  v.  Yoss,  118  :Mich.  106,  76  N.  W.  308.  Where  a  widow, 
continuing  her  deceased  husband's  business,  promised  her  husband's  creditor 
to  pay  his  debt  if  he  would  sell  her  goods  on  credit,  the  promise  was  held  to 
be  within  the  statute.  Ruppe  v.  Peterson,  67  Mich.  437,  35  N.  W.  82.  And 
see  Dirriuger  v.  Moynihan  (Com.  PI.)  10  N.  Y.  Supp.  540.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §§  31,  32;  Cent.  Dig.  §§  ^7-^9. 

48  Furbish  v.  Goodnow,  9S  Mass.  296;  Ames  v.  Foster,  106  Mass.  400,  8  Am. 
Rep.  343.  -See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  33;  Cent.  Dig.  §§ 
50-53,  56. 

49  Thomas  v.  Cook,  8  Barn.  &  C.  728;  Reader  v.  Kingham,  13  C.  B.  (N.  S.) 
344  [overruling  Green  v.  Creswell,  10  Ad.  &  E.  453] ;  Sutton  v.  Grey  [1894]  1  Q. 
B.  285;  Wildes  v.  Dudlow,  L.  R.  19  Eq.  Cas.  198.  See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §§  20,  21;  Cent.  Dig.  §§  32,  S3. 

60  Anderson  v.  Spence,  72  lud.  315,  37  Am.  Rep.  162;  Aldrich  v.  Ames,  9 
Gray  (Mass.)  76;  Beaman's  Adm'rs  v.  Russel,  20  Vt.  205,  49  Am.  Dec.  775; 
Lerch  v.  Gallop,  67  Cal.  595,  8  Pac.  322;  Keesling  v.  Frazier,  119  Ind.  185, 
21  N.  E.  552;  Smith  v.  Delaney,  64  Conn.  204,  29  Atl.  496,  42  Am.  St.  Rep.  181 
and  note;  Jones  v.  Bacon.  145  N.  Y.  446,  40  N.  E.  216;  Esch  v.  White,  76  Minn. 
220,  78  N.  W.  1114;  Warren  v.  Abbett,  65  N.  J.  Law,  99,  46  Atl.  575.  See 
•'Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  20,  21;  Cent.  Dig.  §§  32,  S3. 


§    41)  AGREEMENT   IN    CONSIDERATION    OF   MARRIAGE  89 

tracts  are  not  within  the  statute.  There  are  a  number  of  cases, 
however,  holding  the  contrary.'*^  It  has  sometimes  been  sought  to 
distinguish  between  contracts  within  the  statute  and  contracts  of 
indemnity  by  saying  without  qualification  that  a  promise  of  indem- 
nity is  not  within  the  statute;  but  this  is  misleading.  The  true 
test  is  whether  the  promise  is  primary  and  original  or  whether  it  is 
merely  collateral.^-  Thus,  if  the  promisor  undertakes  to  become 
primarily  and  absolutely  liable  for  any  loss  which  the  promisee 
may  incur  by  acting  upon  the  request  of  the  promisor,  his  promise  is 
an  original  one,  and  need  not  be  in  writing;  and  it  is  a  matter  of 
no  importance  that  another  person  is  also  liable  to  the  promisee.'*^ 
The  promisor's  obligation  is  not  to  pay  such  other  person's  debt, 
but  his  own.  If,  however,  the  main  object  and  purpose  of  the 
promise  is  to  answer  for  the  debt  or  default  of  another  for  which 
that  other  is  or  becomes  primarily  liable,  the  promise  is  within  the 
statute,  even  though  it  be  in  the  form  of  a  promise  of  indemnity." 
This  dictinction,  however,  has  not  always  been  observed  or  correct- 
ly applied  in  the  cases,  and  in  some  instances  there  have  been  con- 
trarv  decisions  on  almost  identical  states  of  fact."* 


SAME— AGREEMENT  IN  CONSIDERATION  OF  MAR- 
RIAGE 

41.  The  statute  applies  to  "any  agreement  made  upon  consideration 
of  marriage." 

This  clause  of  the  statute  does  not  apply  to  mutual  promises  to 
marry, ''^  but  to  promises  in  consideration  of,  or  conditional  upon, 

Bi  NUGENT  V.  WOLFE,  111  Pa.  471,  4  Atl.  15,  50  Am.  Rep.  291,  Throck- 
morton Cas.  Contracts,  62;  May  v.  Williams,  Gl  Miss.  125,  48  Am.  Rep.  80; 
Hurt  V.  Ford.  142  Mo.  283,  44  S.  W.  228,  41  L.  R.  A.  823 ;  Wolverton  v.  Davis, 
85  Va.  64,  6  S.  E.  619,  17  Am.-  St.  Rep.  56.  See  Browne,  Stat.  Frauds,  §.§  161, 
162.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-Wo.)  §§  20,  21;  Cent.  Dig.  §§ 
S2,  33. 

62  NUGENT  V.  WdLFE,  111  Pa.  471,  4  Atl.  15,  56  Am.  Rep.  291,  Throck- 
morton Cas.  Contracts,  62.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-yo.)  §§ 
20,  21;  Cent.  Dig.  §§  32,  33. 

S3  Harrison  v.  Sawtell,  10  Johns.  (N.  Y.)  242,  6  Am.  Dec.  337.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §§  20,  21;  Cent.  Dig.  §§  32,  S3. 

St  NUGENT  V.  WOLFE,  111  Pa.  471,  4  Atl.  15,  56  Am.  Rep.  291,  Throck- 
nioiton  Cas.  Contracts,  62.  See  "Frauds,  Statute  of,"  Deo.  Dig.  (Key-No.)  §5 
20,  21 ;  Cent.  Dig.  §§  32,  S3. 

66  See  cases  cited  supra,  notes. 

6«  (Jlark  V.  Pondloton,  20  Conn.  495;  Short  v.  Stotts,  fi8  Tnd.  29;  Blackburr 
T.  .M:inn,  85  111.  222;   Lewis  v.  Tnpman,  00  Md.  294,  45  Atl.  4.")9.  47  U   R.  / 


90  STATUTE  OF   FRAUDS  (Ch.  4 

a  marriag-e  actually  taking  place,  such  as  promises  to  pay  money, 
or  to  make  a  settlement  of  property,  if  the  marriage  is  consummat- 
ed."^ An  agreement  between  a  man  and  woman  that  on  their  mar- 
riage the  survivor  shall  take  no  interest  in  the  property  of  the 
other,  has  been  held  to  be  a  contract  in  consideration  of  marriage."' 
On  the  other  hand,  an  oral  contract  between  a  man  and  a  woman, 
by  which  the  man  was  to  provide  for  the  comfort  and  support  of 
the  woman  during  life,  pay  her  debts,  take  care  of,  manage,  and 
improve  certain  land  so  as  to  make  it  productive,  and  to  that  end 
that  the  parties  should  marry  and  live  together  on  the  land,  which 
should  be  conveyed  by  the  woman  to  the  man  in  fee  simple,  was 
held  not  to  be  within  the  statute,  on  the  ground  that  the  consid- 
eration for  the  conveyance  of  the  land  was  the  provision  for  the 
support  and  comfort  of  the  woman,  and  not  the  marriage."' 

The  marriage  of  the  parties  is  not  such  part  performance  as  will 
take  an  antenuptial  contract  out  of  the  operation  of  the  statute."** 

385.  "It  would  be  imputing  to  tlie  legislature  too  great  an  absurdity  to  sup- 
pose that  they  ha^i  enacted  that  all  our  courtships,  to  be  valid,  must  be  in 
writing."  Withers  v.  Richardson,  5  T.  B.  Mon.  (Ky.)  94,  17  Am.  Dec.  44. 
See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  S;  Cent.  Dig.  §  3. 

67  Caton  V.  Caton,  L.  R.  1  Ch.  App.  137;  Ogden  v.  Ogden,  1  Bland  (Md.) 
284 ;  Crane  v.  Gough,  4  Md.  316 ;  Henry  v.  Henry,  27  Ohio  St.  121 ;  Finch  v. 
Finch,  10  Ohio  St.  507 ;  Deshon  v.  Wood,  148  Mass.  132,  19  N.  E.  1,  1  L.  R.  A. 
518;  Chase  v.  Fitz,  132  Mass.  359;  McAnnulty  v.  McAnnulty,  120  111.  26. 11  N.  E, 
397,  60  Am.  Rep.  552 ;  Richardson  v.  Richardson,  148  111.  5G3,  36  N.  E.  608,  26  L.. 
R.  A.  305 ;  Flenner  v.  Flenuer,  29  Ind.  564 ;  Caylor  v.  Roe,  99  Ind.  1 ;  Lloyd  v. 
Fulton,  91  U.  S.  479,  23  L.  Ed.  363;  Frazer  v.  Andrews,  134  Iowa,  621,  112 
N.  W.  92,  11  L.  R.  A.  (N.  S.)  593,  13  Ann.  Cas.  556,  A  contract  by  which 
each  party  is  to  retain  the  title  to  his  or  her  property,  and  dispose  of  it  as  if 
unmarried,  is  within  the  statute.  Mallory's  Adm'rs  v.  Mallory's  Adm'r,  92 
Ky.  316,  17  S.  W.  737.  See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  4,  5; 
Cent.  Dig.  §§  ^,  5. 

5  8  Carpenter  v.  Comings,  51  Ilun,  638,  4  N.  Y.  Supp.  947.  See,  also,  Ennis  v. 
Ennis,  48  Hun,  11.  So,  also,  in  case  of  an  agreement  that  certain  property 
shall  go  to  the  survivor.  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  157. 
And  see  White  v.  Eigelow,  154  Mass.  593,  28  N.  E.  904 ;  Adams  v.  Adams,  17 
Or.  247.  20  Pac.  633.  See  "Frauds,  Statute  of,"  Deo.  Dig.  (Key-No.)  §§  4,  5; 
Cent.  Dig.  §§  4,  5. 

B»  Larsen  v.  Johnson,  78  Wis.  300,  47  N,  W.  615,  23  Am.  St.  Rep.  404.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  4-6;  Cent.  Dig.  §§  4-6. 

6  0  HUNT  V.  HUNT,  171  N.  Y.  396,  64  N.  E.  159,  59  L.  R.  A.  306,  Throck- 
morton Cas.  Contracts,  66;  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  157. 
And  see  Johnstone  v.  Mappin,  60  Law  J.  Ch.  241;  Flenner  v.  Flenner,  29^ 
Ind.  564;  Manning  v.  Riley,  52  N.  J.  Eq.  39,  27  Atl.  810.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §  6;  Cent.  Dig.  §  6. 


§    42)  CONTRACT    OB   SALE   OF   LAND3  91 

SAME— CONTRACT  OR  SALE  OF  LANDS,  OR  ANY  INTER- 
EST IN  OR  CONCERNING  THEM 

42.  The  following  general  rules  may  be  mentioned: 

(a)  The  contract  must  be  for  a  substantial  interest  in  land. 

(b)  Fructus  industriales,  or  crops  and  other  products  of  land, 

raised  by  labor  and  cultivation,  are  not  an  interest  therein. 

(c)  Fructus  naturales,  or  the  natural  growth  and  products  of 

land,  are  an  interest  in  land  if  the  ownership  is  to  pass  be- 
fore, but  not  if  it  is  not  to  pass  until  after,  severance, 

(d)  A  mere  license  to  enter  on  land  is  not  an  interest  in  land,  but 

it  is  otherwise  with  an  easement. 

The  treatment  of  this  clause  of  the  statute  belongs  more  properly 
to  a  work  on  the  law  of  real  property,  and  we  need  only  state  the 
rules  governing  its  application  in  a  general  way.  The  terms 
"lands,"  "tenements,"  and  "hereditaments"  have  a  clearly-defined 
meaning  in  the  law  of  real  property.  They  are  used  to  denote  the 
subjects  of  real  property,  as  distinguished  from  personal  property, 
or  goods  and  chattels.  It  is  often  difficult,  however,  to  determine 
what  is  an  interest  in  land  within  this  section. 

A  contract,  to  require  writing  as  being  for  an  interest  in  land, 
must  be  for  a  substantial  interest,  and  not  for  arrangements  prelim- 
inary to  the  acquisition  of  an  interest,  nor  for  a  remote  and  inappre- 
ciable interest.®^     An  agreement  for  a  lease  of  land  would  be  a  con- 

81  Walters  v.  McGuigan,  72  Wis.  155,  39  N.  W.  382.  It  has  been  held  that 
where  two  execution  creditors  levy  on  the  same  land,  and  then  agree  that 
It  shall  be  sold  under  one  of  the  executions,  and  the  proceeds  di\'1ded,  this  is 
not  a  sale,  but  a  compromise,  and  therefore  not  within  the  statute.  Mygatt 
V.  Tarbell,  78  Wis.  351,  47  N.  W.  018.  An  agreement  by  an  heir  with  his 
ancestor  to  release  his  expectations  is  within  the  statute.  Brands  v.  De 
Witt,  44  N.  J.  Eq.  545,  10  Atl.  181,  14  Atl.  894,  6  Am.  St.  Rep.  909.  So.  also, 
is  an  agreement  by  a  vendee  under  an  executory  contract  of  sale  to  surrender 
to  his  vendor  his  interest  under  the  contract.  Dougherty  v.  Catlett,  129  111. 
431.  21  N.  E.  9.'!2.  An  agreement,  on  the  sale  of  land,  for  abatement  of  price 
in  case  of  a  deficiency,  is  not  within  the  .statute.  McGee  v.  Craven,  100  N.  C. 
351,  11  S.  E.  375;  Havlland  v.  Samrais,  02  Conn.  44,  25  Atl.  394,  30  Am.  St 
Rep.  3.30.  Nor  is  an  agreement  by  which  a  party  promises  to  pay  another  a 
certain  sum  per  acre  for  all  the  land  the  latter  .shall  examine  and  advise  the 
former  to  buy.  Wilson  v.  Morton,  85  Cal.  598,  24  Pac.  784.  Agreement  be- 
tween adjoining  landowners  as  to  building  of  partition  fence.  Rudisill  v. 
Cross,  54  Ark.  519,  10  S.  W.  575,  20  Am.  St.  Rep.  57.  Oral  agreement  to  ar- 
bitrate as  to  land.  Fort  v.  Allen,  110  N.  C.  183,  14  S.  E.  085.  Kent  being  an 
incident  to  the  ownership  of  land,  an  assignment  of  rent  must  be  in  writing. 
King  V.  Kaiser,  3  Vise.  Rep.  523,  23  N.  Y.  Supp.  21.  Agreement  to  di>vise 
land.     Gould  v.  Mansfield,  103  Mass.  408,  4  Am.  Rep.  573;   Hale  v.   Hale.  90 


92  STATUTE   OF   FRAUDS  (Ch.  4 

tract  iov  an  Interest  in  land,"^  but  an  agreement  to  pay  for  an  ex- 
amination of  title  with  a  view  to  purchasing  land,  or  to  furnish 
another  with  money  with  which  to  buy  land  would  not  be  within 
the  statute,"^  nor  would  an  agreement  to  transfer  shares  of  stock  in 
a  railroad  company  or  other  corporation,  which,  though  the  com- 
pany may  own  land,  do  not  give  any  appreciable  interest  therein  to 
the  individual  shareholders.®*  According  to  the  better  rule,  which 
is  also  supported  by  the  weight  of  authority,  an  oral  contract  be- 
tween adjoining  landowners,  settling  a  doubt  or  dispute  as  to  the 
boundary  line  between  them,  is  not  within  the  statute.®" 

The  contrary  has  been  held,  however,®®  and  where  the  purpose 
of  the  contract  is  not  to  settle  the  existing  boundary,  but  to  effect 
a  transfer  of  land,  it  is  within  the  statute. ®'' 

An  agreement  between  landlord  and  tenant  for  the  sale  or  sur- 

Va.  728,  19  S.  E.  739;  In  re  Kessler's  Estate,  87  Wis.  6G0,  59  N.  W.  129,  41 
Am.  St  Rep.  74;  Grant  v.  Grant,  63  Conn.  530,  29  Atl.  15,  38  Am.  St.  Rep. 
379.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  56;  Cent.  Dig.  §§  83- 
S9,  1S6-1S8. 

6  2  Potter  V.  Arnold,  15  R.  I.  350,  5  Atl.  379.  Assignment  of  a  lease  the 
unexpired  term  of  which  is  more  than  a  year.  Chicago  Attachment  Co.  v. 
Davis  Sewing-Mach.  Co.  (111.  Sup.)  25  N.  E.  609,  28  N.  E.  959;  Id.,  142  111. 
171,  31  N.  E.  438,  15  L.  R.  A.  754.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  58;  Cent.  Dig.  §§  90,  91. 

63  Horner  v.  Frazier,  65  Md.  1,  4  Atl.  133.  An  agreement  by  an  agent  to 
buy  land  in  his  own  name  for  the  benefit  of  his  principal  is  not  within  the 
statute.  Baker  v.  Wainwright,  36  Md.  336,  11  Am.  Rep.  495.  A  parol  parti- 
tion is  not  within  the  statute.  Meacham  v.  Meacham,  91  Tenn.  532,  19  S. 
W.  757;  Wolf  v.  Wolf,  158  Pa.  621,  28  Atl.  164.  Contra:  Fort  v.  Allen,  110 
N.  C.  183,  14  S.  E.  685.  Nor  is  an  agreement  not  to  use  land  for  a  particular 
purpose.  Hall  v.  Solomon,  61  Conn.  476,  23  Atl.  876,  29  Am.  St.  Rep.  218. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  56;  Cent.  Dig.  §§  83-89,  136- 
138. 

64  Anson,  Cont.  (4th  Ed.)  61.  But  see  Driver  v.  Broad,  4  Reports  411;  Id. 
[1893]  1  Q.  B.  744.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  56;  Cent. 
Dig.  §§  83-89,  136-138. 

65  Jenkins  v.  Trager  (C.  C.)  40  Fed.  726;  Archer  v.  Helm,  69  Miss.  730,  11 
South.  3;  Ferguson  v.  Crick  (Ky.)  23  S.  W.  668;  Lecomte  v.  Toudouze,  82 
Tex.  20S,  17  S.  W.  1047,  27  Am.  St.  Rep.  870;  Grigsby  v..Combs  (Ky.)  21  S.  W. 
37;  Jacobs  v.  Moseley,  91  Mo.  457,  4  S.  W.  135;  Sheets  v.  Sweeny,  136  111. 
336,  26  N.  E.  648 ;  Atchison  v.  Pease,  96  Mo.  566,  10  S.  W.  159;  Hills  v.  Ludwig, 
46  Ohio  St.  373,  24  N.  E.  596;  Patterson  v.  Meyer,  28  Okl.  304,  114  Pac.  256; 
Teass  v.  City  of  St  Albans,  38  W.  Va.  1,  17  S.  E.  400,  19  L.  R.  A.  802.  As  to 
ratificatiou  of  an  agreement  see  Cavanaugh  v.  Jackson,  91  Cal.  5S0,  27  Pac. 
931.    See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  112. 

*66  Camp  V.  Camp,  59  Vt  667,  10  Atl.  748.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  112. 

6  7  Weeks  v.  Martin,  57  Hun,  589,  10  N.  Y.  Supp.  656;  Jenkins  v.  Trager 
(C.  C.)  40  Fed.  726;  Shaffer  v.  Hahn,  111  N.  C.  1,  15  S.  E.  1033;  Buckner  v. 
Anderson,  111  N.  C.  572,  16  S.  E.  4^4;  Mann  v.  Mann,  152  Cal.  23,  91  Pac. 
994.    See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  J  112. 


§    42)  CONTRACT   OE    SALE    OF   LANDS  93 

render  of  fixtures  placed  upon  the  land  by  the  tenant  is  not  a  sale 
of  an  interest  in  land.'* 

According-  to  the  weight  of  authority,  agreements  for  partner- 
ship dealings  in  land — that  is,  agreements  under  which  the  parties 
are  to  buy  land  for  the  purpose  of  selling  it  again,  and  dividing  the 
profits  or  losses — are  not  within  the  statute.^*  So  the  appointment 
of  an  agent  to  sell  land  need  not  be  in  writing.'"* 

Crops  and  Other  Products  of  Land 

Probably  the  chief  question  of  interest  with  reference  to  this  sub- 
ject relates  to  the  sale  of  crops  and  other  products  of  land.     A  dis- 

sf  South  Baltimore  Co.  v.  Muhlbach,  69  Md.  395,  16  Atl.  117.  1  L.  R.  A. 
507 ;  Frear  v.  Hardenbergh,  5  Johns.  (N.  Y.)  272,  4  Am.  Dec.  350 ;  Scoggin 
V.  Slater,  22  Ala.  687;  Heysham  v.  Dettre,  89  Pa.  506.  Nor  are  they  within 
section  17.  Hallen  v.  Runder,  1  C.  M.  &  R.  2G6;  Lee  v.  Gaskell,  1  Q.  B.  D. 
700.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  72;  Cent.  Dig.  §§  116- 
118. 

6  9  ^IcElroy  v.  Swope  (C.  C.)  47  Fed.  380;  Petrie  v.  Torrent.  88  Mich.  43,  49 
N.  W.  1076;  How-ell  v.  Kelly,  149  Pa.  473,  24  Atl.  224;  Gardner  v.  Randell, 
70  Tex.  453,  7  S.  W.  781 ;  Von  Trotha  v.  Bamberger,  15  Colo.  1,  24  Pac.  883 ; 
Flower  v.  Barnekoff,  20  Or.  132,  25  Pac  870,  11  L.  R.  A.  149;  Speyer  v. 
Desjardins,  144  111.  641.  32  N.  E.  283,  36  Am.  St.  Rep.  473;  Fountain  v.  Me- 
nard, 53  Minn.  443,  55  N.  W.  601,  39  Am.  St.  Rep.  617 ;  Bates  v.  Babcock,  95 
Cal.  479,  30  Pac.  605,  16  L.  R.  A.  745,  29  Am.  St.  Rep.  133 ;  Case  v.  Seger,  4 
Wash.  492,  30  Pac.  646 ;  Coffin  v.  Mcintosh,  9  Utah.  .315.  34  Pac.  247.  But  see 
Young  V.  Wheeler  (C.  C.)  34  Fed.  98;  Raub  T.  Smith,  61  Mich.  543,  28  N. 
W.  678,  1  Am.  St.  Rep.  619;  Brosnan  v.  McKee,  63  Mich.  454,  30  N.  W.  107; 
McKinnon  v.  McKinnon  (C.  C.)  46  Fed.  713 ;  Clarke  v.  McAuliffe,  81  Wis.  104, 
51  N.  W.  83.  An  agreement  between  A.  and  B.  to  work  a  stone  quarry  to- 
gether, and  divide  the  profits,  if  B.  can  purchase  land,  to  be  paid  for  by 
A.,  to  whom  the  deed  is  to  be  made,  is  not  for  an  interest  in  land.  Treat 
V.  Hiles,  GS  Wis.  344,  32  N.  W.  517,  60  Am.  Rep.  858.  But  a  contract  by  wliich 
two  persons  are  to  buy  land  and  cultivate  it  on  their  joint  account,  applying 
the  net  proceeds  to  the  payment  of  the  purchase  money,  and  when  the  land 
is  paid  for  to  own  it  as  tenants  in  common,  has  been  held  within  the  statute. 
Wiley  V.  Wiley,  115  Md.  646,  81  Atl.  180,  Ann.  Cas.  1913A,  789.  An  agreement 
by  a  person  to  purchase  land  with  his  own  money,  and  divide  with  another, 
is  within  the  statute.  Towle  v.  Wadsworth,  147  111.  SO,  30  N.  E.  602,  .35  N.  E. 
73;  Robblns  v.  Kimball,  .55  Ark.  414,  18  S.  W.  457,  29  Am.  St.  Rep.  45; 
Morton  v.  Nelson,  145  111.  586,  32  N.  E.  916;  Roughton  v.  Rawlings,  88  Ga.  819, 
16  S.  E.  89;  Schultz  v.  Waldons,  60  N.  J.  Eq.  71,  47  Atl.  187.  And  see,  further, 
a.s  to  what  constitutes  partnership  dealings  in  lands.  Nester  v.  Sullivan. 
147  -Mich.  493,  111  N.  W.  85,  1033.  9  L.  R.  A.  (N.  S.)  1106;  Norton  v.  Brink. 
75  Neb.  560,  106  N.  W.  668,  110  N.  W.  669,  7  K  R.  A.  (N.  S.)  945,  121  Am. 
St.  Rep.  822;  Scheuer  v.  Cochem,  120  Wis.  209,  105  N.  W.  573,  4  L.  R.  A. 
(N.  S.)  427,  and  note.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Keu-No.)  §  76; 
Cent.  Dig.  §§  J3o-t30. 

7  0  Long  V.  Hartwell,  34  N.  J.  Law,  116;  Johnson  v.  Dodge,  17  111.  433; 
Kempner  v.  Gan.s,  87  Ark.  221,  111  S.  W.  1123,  112  S.  W.  1087.  See  "Frauds, 
Statute  r,f,"  Dec.  Dig.  (Ke>j-Xo.)  §§  7J,,  116;  Cent.  Dig.  §§  122-lSl,  251-260; 
"I'ritu-ipal  mnd  Agent,"  Cent.  Dig.  §  580. 


94  STATUTE   OF   FRAUDS  (Ch.  4 

tinction  exists  between  what  are  called  "fructus  industriales,"  such 
as  crops  of  wheat,  corn,  and  the  like,  which  are  obtained  by  labor 
and  cultivation,  and  "fructus  naturales,"  such  as  growing  grass, 
timber,  ores  in  the  ground,  and  the  like,  produced  by  the  power  of 
nature  alone. 

Fructus  industriales  are  chattels,  and  not  an  interest  in  land;^^ 
and  this  is  true  whether  the  crops  are  growing,  or,  having  matured, 
have  ceased  to  draw  any  nutriment  from  the  soil.''^ 

Fructus  naturales,  on  the  contrary,  are  such  an  interest,  and  a 
contract  for  their  sale,  which  contemplates  the  passing  of  the  prop- 
erty before  the  severance,  is  within  the  statute ; '''  but  it  is  otherwise 
if  the  title  is  not  to  pass  until  after  they  are  severed.^* 

Licenses  and  Easements 

A  mere  license  to  enter  upon  land  and  do  a  particular  act  or  series 
of  acts — as  in  the  case  of  a  license  to  enter  upon  land  and  remove 
property  sold  to  the  licensee — is  not  an  interest  in  land,  within  the 
statute.  It  is  otherwise,  however,  where  the  right  conferred  is  to 
enter  upon  lands  and  erect  and  maintain  a  dam  thereon.     This  is 

71  Evans  v.  Roberts,  5  Barn.  &  C.  829;  Jones  v.  Flint.  10  Adol.  &  El.  753; 
Miller  v.  Baker,  1  Mete.  (Mass.)  27;  Wliitmarsli  v.  Walker,  Id.  31.3;  Whipple 
V.  Foot,  2  Johns.  (X.  Y.)  418,  3  Am.  Dec.  442;  Ross  v.  Welch,  11  Gray  (Mass.) 
23.5;  Northern  v.  State,  1  Ind.  113;  Graff  v.  Fitch.  58  111.  373,  11  Am.  Rep.  85; 
Davis  V.  McFarlane,  37  Cal.  634,  99  Am.  Dec.  340 ;  Marshall  v.  Ferguson,  23 
Cal.  65 ;  Puruer  v.  Piercy,  40  Md.  22.3, 17  Am.  Rep.  591.  But  see,  contra,  Kerr  v. 
Hill,  27  W.  Va.  576.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-^'o.)  §  72; 
Coit.  Dig.  §§  116-llS. 

7  2  Turner  v.  Morris,  142  Mo.  App.  60,  125  S.  W.  238.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  {Key-'No.)  §  72;  Cent.  Dig.  §§  116-118. 

73  Rodwell  V.  Phillips,  9  Mees.  &  W.  501 ;  Crosby  v.  Wadsworth,  6  East, 
602;  White  v.  Foster,  102  Mass.  375;  Howe  v.  Batchelder,  49  N.  H.  204; 
GREEN  V.  ARMSTRONG,  1  Denio  (N.  Y.)  550,  Throckmorton  Gas.  Contracts, 
69 ;  Harrell  v.  Miller,  35  Miss.  700,  72  Am.  Dec.  154 ;  Owens  v.  Lewis,  46  Ind. 
489,  15  Am.  Rep.  295;  Lillie  v.  Dunbar,  62  Wis.  198,  22  N.  W.  467;  Hirth 
V.  Graham,  50  Ohio  St.  57,  33  N.  E.  90,  19  L.  R.  A.  721,  40  Am.  St.  Rep.  641 ; 
Ives  V.  Atlantic  &  N.  C.  R.  Co.,  142  N.  C.  131,  55  S.  E.  74,  115  Am.  St.  Rep. 
732,  9  Ann.  Cas.  188,  and  note;  Childers  v.  Wm.  H.  Coleman  Co.,  122  Tenn. 
109,  118  S.  W.  1018. 

There  is,  however,  much  conflict,  and  in  some  states  sales  of  growing  trees, 
to  be  presently  cut  and  removed  by  the  purchaser,  are  held  not  to  be  within 
this  section.  Bostwdck  v.  Leach,  3  Day  (Conn.)  476;  Smith  v.  Bryan,  5  Md. 
141,  59  Am.  Dec.  104 ;  Leonard  v.  Medford,  85  Md.  666,  37  Atl.  365,  37  L.  R. 
A.  449;  cf.  Marshall  v.  Green,  1  C.  P.  D.  35.  See  Tiffany,  Sales,  46.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Eey-^^o.)  §  72;  Cent.  Dig.  §§  116-118. 

7  4  Smith  V.  Surman,  5  B.  C.  561;  Washbourn  v.  Burrows,  11  East,  362; 
Drake  v.  Wells,  11  Allen  (Mass.)  141;  Fletcher  v.  Livingston,  153  Mass.  388, 
26  N.  E.  1001;  Banton  v.  Shorey,  77  Me.  48;  Upson  v.  Holmes,  51  Conn.  500; 
Killmore  v.  Howlett,  48  N.  Y.  569.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  72;  Cent.  Dig.  §§  116-118. 


§    43)  AGREEMENT   NOT   TO    BE   PERFORMED   WITHIN    YEAB  95 

more  than  a  mere  license;  it  is  an  easement.     It  is  the  transfer  of 
an  interest  in  the  land.^"^     A  right  of  way  is  an  interest  in  land.^* 

Statutes  Varying  from  the  English  Statute 

The  statute  in  some  states  varies  from  the  English  statute.  In 
Illinois,  for  instance,  it  applies  to  any  contract  for  the  sale  of  lands, 
etc.,  or  any  interest  in  or  concerning  them,  "for  a  longer  term  than 
one  year."  "  AndiiLother  states  it  applies  only  to  contracts  for  the 
sale"^  lands  or  for  the  lease  thereof  for  a  longer  term  than  one 
year.'^ 


SAME— AGREEMENT  NOT  TO  BE  PERFORMED  WITHIN 

ONE  YEAR 

43.  The  following  rules  may  be  mentioned: 

(a)  The  agreement  must  be  impossible  of  performance  within 

the  year. 

(b)  In  some  jurisdictions  the  agreement  must  contemplate  non- 

performance by  both  parties  within  the  year. 

(c)  In  a  few  jurisdictions  this  clause  of  the  statute  does  not  ap- 

ply to  agreements  relating  to  land. 

Possibility  of  Performance 

If,  upon  a  reasonable  construction  of  the  contract,  it  appears  to 
have  been  understood  by  the  parties  that  it  was  not  to  be  perform- 
ed within  the  year,  it  is  within  the  statute.^'     In  order  that  an 

7  8  See  Mumford  v.  Whitney,  15  Wend.  (N.  Y.)  3S0.  30  Am.  Dec.  60.  In  the 
case  cited  the  authorities  are  collected  and  discussed  at  length.  See,  also, 
Whitmansh  v.  Walker,  1  Mete.  (Mass.)  313;  Johnson  v.  Wilkinson,  139  Mass. 
3,  20  N.  E.  62,  52  Am.  Rep.  698 ;  Tayler  v.  Waters,  7  Taunt.  374 ;  Hayes  v. 
Fine,  91  Cal.  391,  27  Pac.  772;  Clanton  v.  Scruggs,  95  Ala.  279,  10  South. 
7.">7.  Easement  in  portiop  of  the  water  from  a  ditch.  Dorris  v.  Sullivan, 
90  Cal.  279,  27  Pac.  216.  Agreement  between  railroads  for  joint  use  of  the 
right  of  way  of  one  not  within  the  statute.  Alabama  G.  S.  R.  Co.  v.  Rail- 
road Co.,  84  Ala.  570,  3  South.  286,  5  Am.  St.  Rep.  401.  Nor  is  an  agree- 
ment between  telegraph  companies  for  the  use  by  one  of  the  other's  poles. 
Famsworth  v.  Telegraph  Co.,  53  Hun,  6.36,  6  N.  Y.  Supp.  735.  A  right  to 
drain  water  over  another's  land  is  said  to  be  an  interest  in  land.  Deyo 
V.  Ferris,  22  111.  App.  154;  Id.,  24  111.  App.  416.  See  "Frauds,  Statute  of" 
Dec.  Dig.  (Key-No.)  §§  60,  61 ;  Cent.  Difi.  §§  8S-96. 

T6  Bonclli  V.  Blakemore,  66  Miss.  136,  5  South.  228,  14  Am.  St.  Rep.  550. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §§  60,  61;  Cent.  Dig.  §§  8S-i)G. 

ii  Rev.  St.  111.  c.  59,  §  2. 

T8  Virginia  and  Kentucky. 

T»  White  V.  Fitts,  102  Me.  240.  66  Atl.  533,  15  L.  R.  A.  (N.  S.)  313,  120  Am. 
St.  Rep.  483.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  ^6;  Cent.  Dig. 
6  72. 


D6  STATUTE   OF   FRAUDS  (Ch.  4 

agreement  may  fall  within  this  clause  of  the  statute,  however,  the 
parties  must  contemplate  that  it  shall  not  be  performed  within  a 
year.  The  mere  fact  that  it  may  not  be,  or  is  not,  performed  within 
the  year,  does  not  bring  it  within  the  statute.  It  must  appear,  it 
has  been  said,  that  "it  is  to  be  performed  after  the  year."  ^^  Further 
than  this,  the  agreement  must  be  impossible  of  completion  within  a 
year.  If,  by  any  possibility,  it  is  capable  of  being  completed  with- 
in a  year,  it  is  not  within  the  statute,  though  the  parties  may  intend, 
and  though  it  is  probable,  that  it  will  extend  over  a  longer  period, 
and  though  it  does  in  fact  so  extend. 

The  oral  contracts  that  have  been  held  enforceable  under  this 
rule  may  be  classified  as  follows : 

(a)  Agreements  for  ttie  performance  of  an  act  on  the  happening 
of  a  contingency  which  may  possibly  happen  within  a  year — as  in 
the  case  of  agreements  to  do  something  on  the  marriage  or  death 
of  a  person,  without  further  specification  as  to  time;  or  upon  the 
return  of  a  ship,  which  may  return  within  a  year,  though  it  does  not 
in  fact  return  until  a  longer  time  has  elapsed ;  or  upon  the  happen- 
ing of  any  other  event  which  may  happen  at  any  time.*^ 

(b)  Agreements  for  the  continuous  performance  of  acts  until  the 
happening  of  a  contingency  which  may  possibly  happen  within  a 
year, — as  in  the  case  of  agreements  to  render  services,  or  to  support 
a  person,  or  to  pay  money  from  time  to  time,  during  a  person's  life, 
or  until  a  person's  marriage,  or  until  the  happening  of  any  other 

80  Peter  v.  Compton,  1  Smith,  r^eacl.  Cas.  335;  DOYLE  v.  DIXON,  97  Mass. 
20S,  93  Am.  Dec.  SO,  Throckmorton  Cas.  Contracts,  72;  Warner  v.  Railway 
Co.,  164  U.  S.  418,  17  Sup.  Ct.  147,  41  L.  Ed.  49.5;  Bullock  v.  Turnpike  Co., 
85  Ky.  1S4,  3  S.  W.  129;  Worley  v.  Sipe,  111  Ind.  238,  12  N.  E.  385;  Jones 
T.  Pouch,  41  Ohio  St.  146;  Raynor  v.  Drew,  72  Cal.  307,  13  Pac.  866;  Sarles 
V.  Sharlow,  5  Dak.  100,  37  N.  W.  748;  Warren  Chemical  &  Mfg.  Co.  v.  ITol- 
brook,  118  N.  Y.  586,  23  N.  E.  90S,  10  Am.  St.  Rep.  788;  Durham  v.  Hiatt, 
127  Ind.  514,  26  N.  E.  401 ;  Sweet  v.  Lumber  Co.,  5p  Ark.  629,  20  S.  W.  514 ; 
Niagara  Fire  Ins.  Co.  v.  Greene,  77  Ind.  590;  Cole  v.  Singerly,  60  Md.  348; 
MacElree  v.  Wolfersberger,  59  Kan.  105,  52  Pac.  69 ;  Richmond  Union  Pass. 
R.  V.  Railroad  Co.,  96  Va.  670,  32  S.  E.  787.  See  ''Frauds,  Statute  of,"  Dec. 
Dig.  {Key-yo.)  §§  Jt9,  50,  52;  Cent.  Dig.  §§  7^-79. 

81  Kent  V.  Kent,  62  N.  Y.  560,  20  Am.  Rep.  502;  Jilson  v.  Gilbert,  26  Wis. 
637,  7  Am.  Rep.  100;  Updike  v.  Ten  Broeck,  32  N.  J.  Law,  105;  Anonymous, 
1  Salk.  2S0;  Blake  v.  Cole,  22  Pick.  (Mass.)  97;  McPherson  v.  Cox,  96  U.  S. 
404,  24  L.  Ed.  746;  Cole  v.  Singerly,  60  Md.  348;  Thomas  v.  Armstrong,  86 
Va.  323,  10  S.  E.  6,  5  L.  R.  A.  529;  Bartlett  v.  Mystic  River  Corp.,  151  Mass. 
433,  24  N.  E.  780;  Clark  v.  Pendleton,  20  Conn.  495.  A  promise  by  a  man  to 
marry  when  he  recovers  his  health,  McConahey  v.  Griffey,  82  Iowa,  564,  48 
N.  W.  983 ;  or  when  he  returns  from  a  voyage  from  which  he  may  or  may  not 
return  within  a  year,  Clark  v.  Pendleton,  20  Conn.  495 — is  not  within  the 
statute.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  50;  Cent.  Dig.  §§ 
75-77. 


§    43)  AGREEMENT   NOT   TO    BE   PERFOKMED   WITHIN    YEAR  97 

event  which  may  possibly  happen  within  a  year."  In  this  class 
may  be  placed  contracts  that  may  be  terminated  at  any  time  on 
notice*  and  contracts  to  perform  acts  so  long  as  the  other  party 
may  need  such  performance.^^ 

(c)  Agreements  which,  from  their  nature,  and  without  mention- 
ing any  contingency,  will  be  completely  performed  according  to 
their  terms  and  intention  if  a  certain  contingency  shall  happen 
within  the  year  ®* — as  in  the  case  of  agreements  to  forbear  from 
personally  doing  certain  acts  for  an  indefinite  time,  or  for  a  number 
of  years,  and  which  would  be  fully  performed  if  the  promisor  should 
die  within  the  year;*'  or  of  agreements  to  educate  or  support  a 

8  2  Kent  V.  Kent,  62  N.  Y.  560,  20  Am.  Rep.  502;  Heath  v.  Heath,  31  Wis. 
223;  Carr  v.  McCarthy,  70  Mich.  258,  38  N.  W.  241;  Bell  v.  Hewitt's  Ex'rs, 
24  Ind.  280;  Harper  v.  Harper,  57  Ind.  547;  McGregor  v.  McGregor,  L.  R. 
21  Q.  B,  Div.  424;  Dresser  v.  Dresser,  35  Barb.  (N.  Y.)  573;  Hutchinson  v. 
Hutchinson,  46  Me.  154;  Atchison,  T.  &  S.  F.  R.  Co.  v.  English,  38  Kan.  110, 
16  Pac.  82;  East  Line  &  R.  R.  R.  Co.  v.  Scott,  71  Tex.  703,  10  S.  W.  298, 
10  Am.  St  Rep.  804 ;  Stowers  v.  Hollis,  83  Ky.  544 ;  Dailey  v.  Cain  (Ky.)  13 
S.  W.  424.  Nor  is  an  agreement  to  work  for  a  company  "for  the  term  of  five 
years,  or  so  long  as  A.  shall  continue  to  be  agent  for  the  company."  Roberts 
V.  Rockbottom  Co.,  7  Mete.  (Mass.)  46.  Nor  an  agreement  to  employ  a  person 
so  long  as  he  may  be  disabled  from  an  injury  which  he  has  received.  East 
Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea  (Tenn.)  397.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Xe?/-iYo.)  §§  ^9-52;  Cent.  Dig.  §§  74-79. 

8  3  First  Baptist  Church  v.  Insurance  Co.,  19  N.  Y.  305;  Roberts  v.  Rock- 
bottom  Co.,  7  Mete.  (Mass.)  46;  Walker  v.  Railroad  Co.,  26  S.  C.  SO,  1  S.  E. 
366;  Blake  v.  Voight,  11  N.  Y.  Supp.  716;  Id.,  134  N.  Y.  69,  31  N.  E.  256,  30 
Am.  St.  Rep.  622;  Johnston  v.  Bowereock,  62  Kan.  148,  61  Pac.  740.  Contra: 
Dobson  V.  Collis,  1  H.  &  N.  81 ;  Biest  v.  Shoe  Co.,  97  Mo.  137,  70  S.  W.  1081. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  Jf9-52;  Cent.  Dig.  §§  7/,-79. 

84  An  agreement  by  a  railroad  company  to  maintain  cattle  guards  in  con- 
sideration of  a  right  of  way  is  not  within  the  statute,  since  it  may  cease  to 
use  the  right  of  way  before  expiration  of  a  year.  Arkansas  M.  R.  Co.  v. 
Whitley,  54  Ark.  199,  15  S.  W.  465,  11  L.  R.  A.  621.  A  parol  contract  of 
partnership,  without  any  fixed  time  for  continuance,  and  the  business  of 
which  may  be  completed  within  a  year,  is  not  within  the  statute.  Jordan  v. 
Miller,  75  Va.  442;  Treat  v.  Hiles,  68  Wis.  344,  32  N.  W.  517,  60  Am.  Rep. 
858.  It  is  otherwise  if  the  partnership  is  to  be  continued  beyond  a  year. 
Wahl  V.  Barnum,  116  N.  Y.  87,  22  N.  E.  280,  5  L.  R.  A.  623.  And  see,  on  the 
rule  stated  in  the  text.  Frazer  v.  Gates,  118  111.  99,  1  N.  E.  817;  Dailey  v. 
Cain  (Ky.)  13  S.  W.  424;  Great  Western  Turnpike  Co.  v.  Shafer,  57  App. 
Div.  331,  68  N.  Y.  Supp.  8.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.) 
I  50;  Cent.  Dig.  §§  75-77. 

8  5  Under  this  rule  it  has  been  repeatedly  held  that  an  agreement  not  to 
carry  on  a  certain  business  at  a  particular  place  was  not  within  the  statute, 
"because,  being  only  a  personal  engagement  to  forbear  doing  certain  acts, 
not  stipulating  for  anything  beyond  the  promisor's  life,  and  imposing  no  du- 
ties upon  his  personal  representatives,  it  would  be  fully  performed  if  he  died 
within  the  year."  DOYLE  v.  DIXON,  97  Mass.  208,  93  Am.  Dec.  80,  Throck- 
morton Cas.  Contracts,  72;  Lyon  v.  King,  11  Mete.  (Mass.)  411,  45  Am.  Dec. 

Clabk  Cont.(3d  Ed.) — 7 


98  STATUTE   OF   FRAUDS  (Cn.  4 

child  until  a  certain  age,  at  which  he  will  not  arrive  for  several 
years,  or  for  an  indefinite  time,  and  which  would  be  completely  per- 
formed if  the  child  should  die  within  the  year.««  The  agreement, 
to  come  within  this  class,  must  be  such  that  it  will  be  fully  "per- 
formed" on  the  happening  of  the  contingency,  and  not  merely 
terminated.  If  it  cannot  be  fully  performed  within  the  year,  the 
fact  that  it  may  be  terminated,  or  that  further  performance  may  be 
excused  or  rendered  impossible,  is  not  sufficient  to  take  it  out  of 
the  statute.^^  And  this  is  true  even  though  the  contract  contains  a 
provision  by  which  either  party  may  terminate  it  within  a  year." 
(d)  Agreements  which  fix  no  definite  time  for  their  performance, 

219 ;  Worthy  v.  Jones,  11  Gray  (Mass.)  168,  71  Am.  Dec.  696 ;  Hill  v.  Jamieson, 
16  Ind.  125,  79  Am.  Dec.  414;  Richardson  v.  Pierce,  7  R.  I.  330.  And  it  is  im- 
material in  such  cases  that  the  agreement  specifies  that  the  promisor  is  to 
forbear  for  a  certain  number  of  years.  DOYLE  v.  DIXON,  supra.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  50;  Cent.  Dig.  §§  75-77. 

8  6  Peters  v.  Westborough,  19  Pick.  (Mass.)  364,  31  Am.  Dec.  142;  Ellicott 
V.  Turner,  4  Md.  476;  Wooldridge  v.  Stern  (C.  C.)  42  Fed.  311,  9  L.  R.  A. 
129;  Taylor  v.  Deseve,  81  Tex.  246,  16  S.  W.  1008.  See,  also,  Pennsylvania 
Co.  'v.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am.  St.  Rep.  289 ;  Carnig  v. 
Carr,  167  Mass.  544,  46  N.  E.  117,  35  L.  R.  A.  512,  57  Am.  St.  Rep.  488 ;  Yellow 
Poplar  Lumber  Co.  v.  Rule,  106  Ky.  455,  50  S.  W.  685 ;  Sax  v.  Railway  Co.,  125 
Mich.  252,  84  N.  W.  314,  84  Am.  St.  Rep.  572;  Martin  v.  Batchelder,  69  N.  H. 
360,  41  Atl.  83  (to  keep  house  for  year).  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  50;  Cent.  Dig.  §§  75-77. 

8  7  DOYLE  V.  DIXON,  supra.  For  this  reason  it  has  been  held  that  an 
Agreement  to  employ  a  boy  for  five  years,  and  to  pay  his  father  certain  sums 
at  stated  periods  during  that  time,  was  within  the  statute;  for  though,  by 
the  death  of  the  boy,  the  services  which  were  the  consideration  of  the 
promise  would  cease,  and  the  promise  therefore  be  determined,  it  would  not 
be  completely  performed.  Hill  v.  Hooper,  1  Gray  (Mass.)  131.  And  see 
Washington,  A.  &  G.  Steam  Packet  Co.  v.  Sickles,  5  Wall.  580,  18  L.  Ed.  550 
(Cf.  Warner  v.  Railway  Co.,  164  U.  S.  418,  17  Sup.  Ct.  147,  41  L.  Ed.  495, 
criticising  this  case).  And  so,  according  to  the  weight  of  authority,  an  agree- 
ment for  personal  services  for  a  period  of  more  than  one  year  is  within  the 
statute  for,  on  the  death  of  either  party,  it  would  be  terminated,  and  not 
fully  performed.  Williams  v.  Bemis,  108  Mass.  91,  11  Am.  Rep.  318;  Lee's 
Adm'r  V  Hill,  87  Va.  497,  12  S.  E.  1052,  24  Am.  St.  Rep.  666;  Day  v.  Railroad 
Co ,  51  N.  Y.  583,  590 ;  Haynes  v.  Mason,  30  111.  App.  85 ;  William  Butcher 
Steel  Works  v.  Atkinson,  68  111.  421,  18  Am.  Rep.  560;  Chase  v.  Hinkley,  126 
Wis.  75,  105  N.  W.  230,  2  L.  R.  A.  (N.  S.)  738,  110  Am.  St.  Rep.  896,  5  Ann. 
Cas.  328.  In  such  cases,  where  the  employ^  is  discharged  or  quits  the  em- 
ployment, after  part  performance,  he  may  recover  for  what  he  has  done,  not 
on  the  contract,  but  on  an  implied  assumpsit.  Cases  cited  supra;  Baker  v. 
Lauterbach,  68  Md.  (M,  11  Atl.  703.  See,  also,  post,  p.  119.  If  the  term  of 
employment  is  indefinite,  the  contract  is  not  within  the  statute.  See,  also, 
Dobsou  V.  Collis,  1  Hurl.  &  N.  81.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  50;  Cent.  Dig.  §§  75-77. 

8  8  Wagniere  v.  Dunuell,  29  R.  I.  580,  73  Atl.  309,  17  Ann.  Cas.  205.     See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  51;  Cent.  Dig.  §  78. 


§  43)     AGREEMENT  NOT  TO  BE  PERFORMED  WITHIN  TEAR      99 

but  which,  in  view  of  the  subject-matter  and  of  the  understanding 
of  the  parties,  may  be  fully  performed  within  a  year;  **  as  an  agree- 
ment for  the  making-  and  gathering  of  a  crop  which  may  be  made 
within  a  year,  although  a  longer  time  is  usually  required.^" 

(e)  Agreements  of  which  performance  may  be  required  within 
a  year  if  either  party  so  chooses,  though  neither  intends  to  require 
performance,  and  neither  in  fact  requires  it,  until  after  expiration 
of  the  year.®^ 

Part  Performance  ivithin  a  Year 

Another  rule,  which  is  established  in  England  and  in  most  of  our 
states,  is  that  an  agreement  does  not  fall  within  the  statute  if  that 
which  one  of  the  parties  is  to  do  is  all  to  be  performed  within  a 
year;  in  other  words,  the  agreement  must  contemplate  nonperform- 
ance by  both  parties  within  the  year.^^  A  part  performance  by  one 
of  the  parties,  however,  will  not  take  the  agreement  out  of  the  stat- 
ute.'" 

Some  of  the  states,  however,  have  refused  to  recognize  this  rule, 
and  hold  that,  even  though  all  that  is  to  be  done  by  one  of  the  par- 
ties is  to  be  fully  done  within  a  year,  the  agreement  is  nevertheless 
within  the  statute,  if  the  other  party's  promise  is  not  to  be  perform- 

89  Thomas  v.  Croom,  102  Ark.  108,  143  S.  W.  88.  See  "'Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §  J,9 ;  Cent.  Dig.  §  7^. 

80  Valley  Planting  Co.  v.  Wise,  93  Ark.  1,  123  S.  W.  7GS,  26  L.  R.  A.  (N.  S.) 
403.    See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  J,!);  Cent.  Dig.  §  IJ,. 

91  Iliiussman  v.  Burnham,  59  Conn.  117,  22  Atl.  1065,  21  Am.  St.  Rep.  74; 
Seddon  v.  Rosenbaum,  85  Va.  928,  9  S.  E.  326,  3  L.  R.  A.  337;  Walker  v. 
Johnson,  96  U.  S.  424,  24  L.  Ed.  834;  Connolly  v.  Giddings,  24  Neb.  131,  37 
N.  W,  939.  A  contract  intended  to  be  performed  within  a  year  is  not  within 
the  statute,  though  before  the  year  expires  it  is  extended  six  months.  Ward 
V.  Matthews,  73  Cal.  13,  14  Pac.  604 ;  Donovan  v.  Richmond,  61  Mich.  467,  28 
N,  W.  516.  A  written  lease  for  more  than  a  year,  but  with  less  than  a  year 
to  run,  may  be  modified  by  parol.  Doherty  v.  Doe,  18  Colo.  456,  33  Pac.  165. 
See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  ^5;  Cent.  Dig.  §§  67-71. 

92  Donellan  v.  Read,  3  Barn.  &  Adol.  899;  Horner  v.  Frazier,  65  Md.  1,  4 
Atl.  133;  Blanding  v.  Sargent,  33  N.  H.  239,  66  Am.  Dec.  720;  Winters  v. 
Cherry,  78  Mo.  344;  Smaliey  v.  Greene,  52  Iowa,  241,  3  N.  W.  78,  35  Am. 
Rep.  267;  Durfee  v.  O'Brien,  16  R.  I.  213,  14  Atl.  857;  Dant  v.  Head,  90  Ky. 
255,  13  S.  W.  1073,  29  Am.  St.  Rep.  369;  Berry  v.  Doremus,  30  N.  J.  Law,  309; 
Piper  V.  Kosher,  121  lud.  407,  23  N.  E.  269 ;  Grace  v.  Lynch,  80  Wis.  166,  49 
X.  W.  751;  Curtis  v.  Sage,  35  111.  22;  Langan  v.  Iverson,  78  Minn.  299,  SO 
N.  W.  1051 ;  Washburn  v,  Dosch,  68  Wis.  436,  32  N.  W.  551,  60  Am.  Rep.  873. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  54,  ISO;  Cent.  Dig.  §§  SI,  300. 

»3  See  Osborne  v.  Kimball,  41  Kan.  187,  21  Pac.  163;  Sbumate  v.  Farlow, 
125  Ind.  359,  25  N.  E.  432;  Baker  v.  Codding,  18  N.  Y.  Supp.  159;  liartwell 
V.  Young,  67  Hun,  472,  22  N.  Y.  Supp.  486;  Chase  v.  Ilinkley,  126  Wis.  75,  105 
N.  W.  230,  2  L.  R.  A.  (X.  S.)  738,  110  Am.  St.  Rep.  896,  5  Ann.  Cas.  328.  See 
'■Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  136;  Cent.  Dig.  §  dUO. 


10§  STATUTE   OF   FRAUDS  (Ch.  4 

ed  within  the  year ;  •*  and  in  these  states  no  recovery  can  be  had 
on  the  contract  by  the  party  who  has  performed  his  part,  though 
he  may  sue  on  the  promise  implied  on  the  part  of  the  other  party 
from  his  acceptance  of  the  benefits  of  such  performance.^' 

It  is  held  in  Illinois  that  an  agreement  which  is  to  be  fully  per- 
formed within  the  year,  except  for  the  mere  payment  of  money,  is 
not  within  the  statute ;  the  party  to  whom  the  money  is  payable 
having  performed  on  his  part.®^ 

Particular  Contracts 

According  to  the  weight  of  authority,  this  clause  of  the  statute 
applies  to  promises  to  marry  which  are,  by  their  terms,  to  be  per- 
formed after  the  expiration  of  a  year.®^ 

It  has,  however,  been  held  in  England,  and  in  some  of  our  states, 
that  it  does  not  apply  to  contracts  relating  to  land.®*  Mr.  Browne, 
in  his  work  on  the  Statute  of  Frauds,  takes  the  contrary  view,  and 
says  that  "it  includes  all  those  contracts  which  are  of  such  duration, 
whatever  be  their  subject-matter."  ®"  We  have  been  unable  to 
find  any  case  in  which  the  point  seems  to  have  been  directly  raised 
and  decided  in  accordance  with  Mr.  Browne's  statement,  but  there 
are  many  cases  which  assume  that  the  statute  applies  to  agreements 
relating  to  land.  For  instance,  some  courts  hold  that  a  parol  lease 
for  a  year,  to  commence  on  a  future  day,  is  within  this  clause  of 
the  statute.^     In  some  of  the  states  the  statute  in  regard  to  con- 

9  4  Whipple  V.  Parker,  29  Mich.  369;  Marcy  v.  Marcy,  9  Allen  (Mass.)  8 
Frary  v.  Sterling,  99  Mass.  461 ;  Pierce  v.  Paine's  Estate,  28  Vt.  34 ;  Sheehy 
V.  Adarene,  41  Vt.  541,  98  Am.  Dec.  623;  Lane  v.  Shackford,  5  N.  H.  130 
Montague  v.  Garnett,  3  Bush  (Ky.)  297;  Broadwell  v.  Getman,  2  Denio  (N. 
Y.)  87;  McElroy  v.  Ludlum,  32  N.  J.  Eq.  828;  Jackson  Iron  Co.  v.  Concen 
trating  Co.,  65  Fed.  298,  12  C.  C.  A.  636.  See  ''Frauds,  Statute  of,"  Dec.  Dig 
{Key-yo.)  §  J 36;  Cent.  Dig.  §  SOO. 

9  5  Whipple  V.  Parker,  29  Mich.  369.  See,  also,  post,  p.  119,  note  90;  ante, 
p.  IS.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Eey-Ko.)  •;§  129,  136;  Cent.  Dig. 
88  poo    SOO 

96  Curtis  V.  Sage,  35  111.  22;  Worden  v.  Sharp,  56  IlL  104.  See  ^'Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §§  5J,,  136;  Cent.  Dig.  §§  81,  SOO. 

97  Derby  v.  Phelps,  2  N.  H.  515;  Clark  v.  Pendleton,  20  Conn.  495;  Lawrence 
T.  Cooke,  56  Me.  187,  96  Am.  Dec.  443 ;  Nichols  v.  Weaver,  7  Kan.  373 ;  Lewis 
V.  Tappan,  90  Md.  294,  45  Atl.  469,  47  L.  R.  A.  385.  See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §  U;  Cent.  Dig.  §  66. 

9  8  Hollis  V.  Edwards,  1  Vern.  159;  Fall  v.  Hazelregg,  45  Ind.  576,  15  Am. 
Rep  278;  Sobey  v.  Brisbee,  20  Iowa,  105;  Young  v.  Dake,  5  N.  Y.  463,  55 
Am.  Dec.  350;  Wilson  v.  Martin,  1  Denio  (N.  Y.)  602;  Railsback  v.  Walke, 
81  Ind.  409.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  U;  Cent.  Dig. 
I  66. 

9  9  Browne,  St  Frauds,  §  272. 

1  Delano  v.  Montague,  4  Cush.  (Mass.)  42 ;  Wheeler  v.  Frankenthal,  78  IlL 
124-  Comstock  v.   Ward,  22  111.  248;  Olt  T.  Lohnas,  19  111.  576;  Roberts  v. 


§§    44-46)  FORM   EEQUIKBD  101 

tracts  relating  to  land  excepts  from  its  operation  "leases  for  a  term 
not  exceeding  one  year,"  and  "contracts  for  the  leasing  for  a  period 
not  longer  than  one  year,"  and  in  some  states  it  is  held  that  such  a 
statute  does  not  apply  to  agreements  for  a  lease  for  a  year  to  com- 
mence in  the  future.^ 

A  contract  for  services  for  one  year,  to  commence  at  a  future  day, 
is  within  the  statute,^  even  though  it  is  to  commence  on  the  day 
after  the  contract  is  made ;  *  but  it  is  otherwise  if  it  is  to  commence 
on  the  day  the  contract  is  entered  into.** 


SAME— FORM  REQUIRED 

44.  CONTENTS  OF  WRITING.     The  writing  must  show: 

(a)  The  names  or  descriptions  of  the  parties. 

(b)  The  terms  and  subject-matter  of  the  agreement. 

(c)  The  consideration  (in  most  jurisdictions). 

45.  SEPARATE    PAPERS.     The    writing    may    be    on    separate 

papers,  provided  they  are  all  signed  by  the  party  to  be 
charged  or  his  agent,  or  that  such  as  are  not  so  signed  are 
attached  to  or  referred  to  in  a  signed  paper. 

46.  BY  WHOM  SIGNED.     In  most  jurisdictions  only  the  signa- 

ture of  the  party  to  be  charged  is  required,  but  in  some  ju- 
risdictions contracts  consisting  of  mutual  promises  must  be 
signed  by  both  parties. 

Tennell,  3  T.  B.  Mon.  (Ky.)  247;  Wilson  v.  Martin,  1  Denlo  (N.  Y.)  602;  At- 
wood  V.  Norton,  31  Ga.  507;  Strehl  v.  D'Evers,  66  III.  77;  Jellett  v.  Rhode,  43 
Minn.  166,  45  N.  W.  13,  7  L.  R.  A.  671 ;  White  v.  Holland,  17  Or.  3,  3  Pac. 
573 ;  Beiler  v.  Devall,  40  Mo.  App.  251 ;  White  v.  Levy,  93  Ala.  484,  9  South. 
164;  Cook  v.  Redman,  45  Mo.  App.  397.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
{Key-No.)  §  U;  Cent.  Dig.  §  66. 

2  Whiting  V.  Ohlert,  52  Mich.  462,  18  N.  W.  219,  50  Am.  Rep.  265 ;  Young 
V.  Dake,  5  N.  Y.  463,  55  Am.  Dec.  356;  McCroy  v.  Toney,  66  Miss.  233,  5 
South.  392,  2  L.  R.  A.  847;  Goldberg  v.  Lavinskl,  3  Misc.  Rep.  607,  22  N.  Y. 
Supp.  552.  Contra,  Greenwood  v.  Strother,  91  Ky.  482,  16  S.  W.  138.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  {K,ey-No.)  §  U;  Cent.  Dig.  §  66. 

3  BRITAIN  V.  ROSSITER,  L.  R.  11  Q.  B.  D.  123,  Throckmorton  Cas.  Con- 
tracts, 86;  Bracegirdle  v.  Heald,  1  B.  &  A.  722;  Townsend  v.  Minford,  48  Hun, 
617,  1  N.  Y.  Supp.  565 ;  Lee's  Adm'r  v.  Hill,  87  Va.  497,  12  S.  El  1052,  24  Am. 
St.  Rep.  666;  Baker  v.  Codding,  18  N.  Y.  Supp.  159;  Chase  v.  Hinkley,  126 
Wis.  75,  105  N.  W.  230,  2  L.  R.  A.  (N.  S.)  738,  110  Am.  St.  Rep.  896,  5  Ann. 
Cas.  328.     See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  U;  Cent.  Dig.  §  66. 

*  BlUington  v.  Cahill,  51  Hun,  132,  4  N.  Y.  Supp.  660.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  J,/,;  Cent.  Dig.  §  66. 

f- Cawthorne  v.  Cordrey,  13  C.  B.  N.  S.  406;  32  L.  J.  (C.  P.)  152;  Cox  v. 
Brewing  Co.,  53  Hun,  634,  6  N.  Y.  Supp.  841 ;  Aiken  v.  Nogle,  47  Kan.  96,  27 


102  STATUTE   OF   FRAUDS  (Ch.  4 

47.  HOW  SIGNED.     The  signature  may  be  by  mark  or  initial, 

and,  unless  the  statute  requires  the  name  to  be  "subscrib- 
ed," may  be  printed,  and  may  be  in  any  part  of  the  writ- 
ing. 

48.  AGENT  TO   SIGN.     Where  the  signature  is  by  agent,  the 

agent  must  be  a  third  person;  but  a  person  who  acts  as 
agent  of  one  person  in  making  the  contract  may  act  as 
agent  of  both  in  making  the  memorandum. 

49.  DELIVERY.     The  writing  need  not  be  delivered,  except  it  be 

in  form  of  a  deed  of  land. 

Form  Merely  Evidentiary 

The  statute  does  not  require  that  the  contract  itself  be  reduced 
to  writing.  A  valid  oral  contract  may  exist,  but  if  it  is  within  the 
statute  of  frauds  it  may  not  be  enforced  for  the  want  of  written 
evidence  by  which  alone  it  may  be  proved.^ 

For  this  reason  the  memorandum  or  note  may  be  made  at  any 
time  between  the  formation  of  the  contract  and  the  commencement 
of  an  action  thereon.^  The  writing  need  not  be  intended  as  a  for- 
mal contract,®  nor,  in  fact,  is  it  required  to  be  in  any  particular 
form.*  All  that  is  required  is  written  evidence  of  the  agreement, 
and  therefore  the  memorandum  may  consist  of  letters  written  by 
the  party  to  be  charged  to  his  own  agent,  or  to  other  third  per- 
sons.^"   The  memorandum  may  even  consist  of  entries  made  by  the 

Pac.  825;  Hudgins  v.  State,  126  Ga.  639,  55  S.  E.  492.     See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  U;  Cent.  Dig.  §  66. 

e  ULLSPERGER  v.  MEYER,  217  111.  262,  75  N.  E.  4S2,  2  L.  R.  A.  (N.  S.) 
221,  3  Ann.  Gas.  1032,  Throckmorton  Gas.  Gontracts,  74.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §§  103,  106;  Cent.  Dig.  §§  193-210. 

7  Lerned  v.  Wannemacher,  9  Allen  (Mass.)  412 ;  Gale^  v.  Nixon,  6  Gow. 
(N.  Y.)  445;  Sbeehy  v.  Fulton,  38  Neb.  691,  57  N.  W.  395,  41  Am.  St.  Rep. 
767.  But  not  after  the  action  is  commenced.  Bill  v.  Bament,  9  Mees.  &  W. 
36;  Lucas  v.  Dixon,  22  Q.  B.  Div.  357;  Bird  v.  Munroe,  66  Me.  337,  22  Am. 
Rep.  571.  But  see  post,  p.  103,  note  17.  It  has  been  held  in  Illinois  that 
an  oral  agreement  in  consideration  of  marriage  is  not  taken  out  of  the  statute 
by  being  reduced  to  writing  after  marriage.  McAnnulty  v.  McAnnulty,  120 
111,  26,  11  N.  E.  397,  60  Am.  Rep.  552.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  lOJi;  Cent.  Dig.  §  209. 

8  ULLSPERGER  v.  MEYER,  217  IlL  262,  75  N.  E.  482,  2  L.  R.  A.  (N.  S.)  221, 

3  Ann.  Gas.  1032,  Throckmorton  Gas.  Gontracts,  74.    See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §§  103,  106;  Cent.  Dig.  §§  192-210. 

9  Atwood  V.  Gobb,  16  Pick.  (Mass.)  230,  26  Am.  Dec.  657.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §  103;  Cent.  Dig.  §§  192-208. 

10  Gibson  v.  Holland,  L.  R.  1  C.  P.  1;  Peabody  v.  Speyers,  56  N.  Y.  2.30; 
Hollis  V.  Burgess,  37  Kan.  487,   15  Pac.  536;   Lee  v.  Gherry,  85  Tenn.  707, 

4  S.  W.  835,  4  Am.  St  Rep.  800 ;  Cunningham  v.  Williams,  43  Mo.  App.  629 ; 


§§    44-49)  FORM    KEQUIKED  103 

party  to  be  charged  on  his  or  his  agent's  books ;  *^  and  entries  in 
the  records  of  a  corporation  may  prove  a  contract  by  it.^^  So,  also, 
resolutions  of  a  city  council  may  be  a  sufficient  memorandum  of  a 
contract  by  it  on  behalf  of  the  city.^^  A  telegram  may  be  a  suffi- 
cient memorandum  to  satisfy  the  statute  and  charge  the  party  by 
whom  it  is  sent.^*  Even  recitals  in  a  w^ill  have  been  held  sufficient 
evidence  of  a  contract  by  the  testator  to  answer  for  the  debts  of 
his  son.^' 

A  letter  repudiating  a  verbal  contract  previously  made  by  the 
writer  may  be  sufficient.^*  Some  of  the  courts  seem  to  hold  that 
the  admission  of  an  oral  contract  in  the  pleadings  in  an  action  is  a 
sufficient  memorandum,  but  the  decisions  are  no  doubt  based  on 
the  fact  that  the  statute,  not  having  been  pleaded,  is  waived. ^^ 
However  this  may  be,  the  contrary  is  the  rule.^* 

Spangler  v.  Danforth,  65  111.  152;  Moss  v.  Atkinson,  44  Cal.  3;  North  Platte 
Milling  &  Elevator  Co.  v.  Price,  4  Wyo.  293,  33  Pac.  6G4;  Nicholson  v.  Dover, 
145  N.  C.  18,  58  S.  E.  444,  13  L.  R.  A.  (N.  S.)  167.  See  '"Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §§  103, 106;  Cent.  Dig.  §§  192-208. 

11  Johnson  v.  Dodgson,  2  Mee3  &  W.  653;  Clason's  Ex'rs  v.  Bailey,  14 
Johns.  (N.  Y.)  484;  Coddington  v.  Goddard,  16  Gray  (Mass.)  436.  See 
"Frauds,  Statute  of,"  Dec,  Dig.  (Key-No.)  §  103;    Cent.  Dig.  §§  192-208. 

12  Tufts  V.  Mining  Co.,  14  Allen  (Mass.)  407 ;  McManus  v.  City  of  Boston, 
171  Mass.  152,  50  N.  E.  607  (record  of  board  of  street  commissioners)  ;  Lam- 
kin  V.  Manufacturing  Co.,  72  Conn.  57,  47  Atl.  593,  1042,  44  L.  R.  A.  786. 
See  "Frauds,  Statute  of."  Dec.  Dig.  (Key-No.)  §  103;   Cent.  Dig.  §§  192-208. 

13  Marden  v.  Chaniplin,  17  R.  I.  423,  22  Atl.  938 ;  Argus  Co.  v.  City  of 
Albany,  55  N.  Y.  495,  14  Am.  Rep.  296;  City  of  Greenville  v.  Waterworks 
Co.,  125  Ala.  625,  27  South.  764.  But  see  Wilhelm  v.  Fagan,  90  Mich.  6,  50 
N.  W.  1072.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  103;  Cent.  Dig. 
§§  192-208. 

14  Trevor  v.  Wood,  36  N.  Y.  307,  93  Am.  Dec.  511 ;  Marschall  v.  Vineyard 
Co.,  1  Misc.  Rep.  511,  21  N.  Y.  Supp.  468;  McElroy  v.  Buck,  35  Mich.  434; 
Little  V.  Dougherty,  11  Colo.  103,  17  Pac.  292;  Everman  v.  Herndon  (Miss.) 
11  South.  652;  Whaley  v.  Hinchman,  22  Mo.  App.  483.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §  103;   Cent.  Dig.  §§  192-208. 

15  In  re  Hoyle,  [1893]  1  Ch.  84.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  192;    Cent.  Dig.  §§  192-208. 

16  LOUISVILLE  ASPHALT  VARNISH  CO.  v.  LORICK,  29  S.  C.  533,  8 
S.  E.  8,  2  L.  R.  A.  212,  Throckmorton  Cas.  Contracts,  SO;  Capitol  City  Brick 
Co.  v.  Atlanta  Ice  &  Coal  Co.,  5  Ga.  App.  436,  63  S.  E.  562.  See  "Frauds. 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  103;    Cent.  Dig.  §§  192-208,  263. 

.17  Gregg  V.  Garrett,  13  Mont.  10,  31  Pac.  721;  Lauer  v.  Mercantile  Inst, 
8  Utah,  305,  31  Pac.  397.  See  ante,  p.  102,  note  7;  post,  p.  120,  notes  95, 
96.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  103;  Cent.  Dig.  §§  192- 
208. 

18  Taylor  v.  Allen,  40  Minn.  433,  42  N.  W.  292;  Holler  v.  Richards,  102 
N.  C.  54.5,  9  S.  E.  460;  Barrett  v.  McAllister,  33  W.  Va.  738,  11  S.  E.  220; 
Browning'  v.  Berry,  107  N.  C.  2.31,  12  S.  E.  195,  10  L.  R.  A.  726.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  103;    Cent.  Dig.  §§  192-208. 


104  STATUTE   OF   FRAUDS  (Ch.  4 

Showing  as  to  Agreement 

The  memorandum  must  show  agreement  on  the  part  of  the  par- 
ty sought  to  be  charged;  that  is,  it  must  show  a  concluded  con- 
tract in  so  far  as  he  is  concerned.^'  In  most  jurisdictions,  where  a 
written  proposal  has  been  made  by  the  party  sought  to  be  charged, 
an  acceptance  by  the  other  party  may  be  established  by  parol  evi- 
dence.^" 

Showing  as  to  the  Parties 

The  memorandum  of  the  contract  must  show  who  are  the  par- 
ties to  it;  not  only  who  is  the  promisor,  but  who  is  the  promisee 
as  well.  Thus,  where  a  person  promised  that  he  would  answer  for 
the  debt  of  a  third  person,  and  signed  a  memorandum  to  that  effect, 
but  the  memorandum  did  not  show  the  name  of  the  promisee,  it 
was  held  insufficient.  "No  document,"  it  was  said,  "can  be  an 
agreement  or  memorandum  of  one,  which  does  not  show  on  its 
face  who  the  parties  making  the  agreement  are."  ^^ 

A  party  need  not  be  named,  if  he  is  sufficiently  described ;  and 
the  description  will  let  in  parol  evidence  to  show  his  identity. ^- 

19  Coe  V.  Tough,  116  N.  T.  273,  22  N.  E.  550.  See  ''Frauds,  Statute  of," 
Dec.  Dig.  {Key-No.)  §  106;    Cent.  Dig.  §§  193-211. 

20  Reuss  V.  Picksley,  L.  R.  1  Exch.  342 ;  Farwell  v.  Lowther,  18  111.  252 ; 
Gradle  v.  Warner,  140  111.  123,  29  N.  E.  1118 ;  Ehrmanntraut  v.  Robin.son,  52 
Minn.  333,  54  N.  W.  188 ;  Hlmrod  Furnace  Co.  v.  Railroad  Co.,  22  Ohio  St. 
451.     See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  106;   Cent.  Dig.  §§  193- 

iii. 

21  Williams  v.  Lake,  2  El.  &  El.  349.  And  see  McConnell  v.  Brillhart,  17 
111.  354,  65  Am.  Dec.  661;  McElroy  v.  Seery,  61  Md.  389,  48  Am.  Rep.  110; 
Sherburne  v.  Shaw,  1  N.  H.  157,  8  Am.  Dec.  47;  Grafton  v.  Cummings,  99 
U.  S.  100,  25  L.  Ed.  366;  McGovern  v.  Hern,  153  Mass.  308,  26  N.  E.  861,  10 
L.  R.  A.  815,  25  Am.  St.  Rep.  632;  Lewis  v.  Wood,  153  Mass.  321,  26  N.  E. 
862,  11  L.  R.  A.  143 ;  Coombs  v.  Wilkes  [1891]  3  Ch.  77 ;  Watt  v.  Cranberry 
Co.,  63  lov/a,  730,  18  N.  W.  898.  A  memorandum  of  a  sale  of  goods,  which 
does  not  clearly  show  which  party  is  vendor  and  which  vendee,  is  not  suffi- 
cient. Frank  v.  Eltringham,  65  Miss.  281,  3  South.  655;  Bailey  v.  Ogden,  3 
Johns.  (N.  Y.)  399,  3  Am.  Dec.  509.  But  see  Newell  v.  Radford,  L.  R.  3  C.  P. 
52;  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  446,  14  L.  Ed.  493;  Thorn- 
ton V.  Kelly,  11  R.  I.  498.  An  auctioneer's  memorandum  of  a  sale  of  land 
must  show  who  the  vendor  is.  O' Sullivan  v.  Overton,  56  Conn.  102,  14  Atl. 
300;  Mentz  v.  Newwitter,  122  N.  Y.  491,  25  N.  E.  1044,  11  L.  R.  A.  97,  19 
Am-  St.  Rep.  514.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  107,  158; 
Cent.  Dig.  §§  212,  213,  375. 

2  2  Sale  V.  Lambert,  18  Eq.  1;  Fessenden  v.  Mussey,  11  Cush.  (Mass.)  127; 
Lerned  v.  Johns,  9  Allen  (Mass.)  419 ;  Catling  v.  King,  5  Ch.  Div.  660 ;  Thorn- 
ton V.  Kelly,  11  R.  I.  498 ;  Violett  v.  Powell's  Adm'r,  10  B.  Mon.  (Ky.)  347, 
52  Am.  Dec  548 ;  Dykers  v.  Towusend,  24  N.  Y.  57 ;  Jones  v.  Dow,  142  Mass. 
130,  7  N.  E.  839.  Where  a  defendant  had  directed  his  factor  to  sell  goods, 
and  to  use  a  fictitious  name  to  represent  him  as  seller,  and  the  fictitious  name 
was  inserted  in  the  factor's  memorandum,  parol  evidence  was  held  admissi- 


§§    11   49)  rORM    REQUIRED  106 

Where  A.  in  his  own  name  enters  into  a  contract  as  the  agept  of  B., 
the  other  party  to  the  contract  may  show  by  parol  evidence  that 
he  really  contracted  with  B.,  who  has  been  described  in  the  memo- 
randum in  the  character  of  A.*' 

Slwzving  as  to  Terms 

The  memorandum  must  contain  all  the  material  terms  of  the  con- 
tract expressed  with  such  certainty  that  it  may  be  understood  with- 
out recourse  to  parol  evidence.'^* 

Where  a  contract  does  not  fall  within  the  statute,  the  parties 
may,  at  their  option,  put  their  agreement  in  writing,  or  may  con- 
tract orally,  or  put  some  of  the  terms  in  writing,  and  arrange  oth- 
ers orally.  In  the  latter  case,  although  that  which  is  written  can- 
not be  varied  by  parol  evidence,  yet  the  terms  arranged  orally  rnay 
be  proved  by  parol,  in  which  case  they  supplement  the  writing,  and 
the  whole  constitutes  one  entire  contract.  Where,  however,  a  con- 
tract falls  within  the  statute,  all  its  terms  must  be  in  writing.^" 
Parol  evidence  of  terms  not  appearing  in  the  writing  would  invali- 
date the  contract  by  showing  that  it  was  different  from  what  ap- 
pears in  the  memorandum. 

It  is  said  in  a  Massachusetts  case  that:  "The  contract  or  memo- 
randum must  express  the  substance  of  the  contract  with  reasonable 
certainty,  either  by  its  own  terms  or  by  reference  to  some  other 
deed,  record,  or  other  matter  from  which  it  can  be  ascertained  with 

ble  to  show  that  the  name  represented  defendant.  Bibb  v.  Allen,  149  U.  S. 
481,  13  Sup.  Ct  950,  37  L.  Ed.  819.  But  see  Minard  v.  Mead,  7  Wend.  (N.  Y.) 
68;  Newcomb  v.  Clark,  1  Denio  (N.  Y.)  226.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Kerj-No.)  §§  101,  158;    Cent.  Dig.  §§  212,  213,  S75. 

23  Trnenian  v.  Loder,  11  Adol.  &  EI.  589;  Dykers  v.  Townsend,  24  N.  Y. 
57 ;  Sanborn  v.  Flagler,  9  Allen  (Mass.)  477 ;  Hargrove  v.  Adcock,  111  N.  C. 
IGG,  16  S.  E.  16 ;  McConnell  v.  Brillhart,  17  111.  354,  65  Am.  Dee.  661 ;  Violett 
V.  Powell's  Adm'r,  10  B.  Mon.  (Ky.)  347,  52  Am.  Dec.  548;  Hypes  v.  Griffin, 
SO  111.  i:;4,  31  Am.  Rep.  71;  Tewksbury  v.  Howard,  138  Ind.  103,  37  N.  E. 
3.J.J.  The  agent,  however,  so  contracting  cannot  show  by  parol  that  he  did 
not  intend  to  bind  himself.  Higgins  v.  Senior,  8  Mees.  &  W.  834 ;  Waring  v. 
Mason,  18  Wend.  (N.  Y.)  425.  See  "Frauds,  Statute  of,"  Dec.  Diy.  (Key-No.) 
§  158;   Cent.  Dig.  §  S75. 

2*  I'att  v.  Gerst,  140  Ala.  287,  42  South.  1001;  Seymour  v.  Oelrichs,  156 
Cal.  782,  106  Pac.  88,  134  Am.  St.  Ptep.  154;  McKnight  v.  Broadway  Inv.  Co., 
147  Ky.  535,  145  S.  W.  377.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  i 
113;   Cent.  Dig.  §§  239-2J,l. 

iis  May  V.  Ward,  134  Mass.  127;  Drake  v.  Seaman,  97  N.  Y.  230;  Mess- 
more  y.  Cunningham,  78  Mich.  023,  44  N.  W.  145;  Lester  v.  Heidt,  86  Ga. 
226,  12  S.  E.  214,  10  L.  R.  A.  108 ;  Ringer  v.  Iloltzclaw,  112  Mo.  519,  20  S.  W. 
800;  Fry  v.  Piatt,  32  Kan.  62,  3  Pac.  781;  Willy  v.  Robert,  27  Mo.  388; 
O'Donnell  v.  Leeman.  43  Me.  158,  69  Am.  Dec.  54;  Kriete  v.  Myer,  61  Md. 
558.  See  "Frauds,  Statute  of,"  Dec.  Di(/.  (Key-No.)  %  113;  Cent.  Dig.  g§  23if~ 
2U. 


106  STATUTE  OF   FRAUDS  (Ch.  4 

like  reasonable  certainty.  The  statute  is  intended  as  a  shield.  No 
particular  forms  are  required,  and  it  looks  at  the  substance  of  the 
contract.  It  requires  a  note  or  memorandum  of  the  contract,  not 
a  detail  of  all  its  particulars."  ^®  While  this  is  no  doubt  sound  law, 
it  must  not  be  taken  to  mean  that  any  of  the  terms  of  the  contract 
can  be  shown  by  parol. 

Same — Price  and  Terms  of  Payment 

The  price  is  usually  regarded  as  an  essential  term  of  a  contract 
of  sale  and  as  such  is  required  to  be  stated  in  the  memorandum.^' 
This  is  certainly  true  where  the  action  is  by  the  vendor  against 
the  vendee,  for  the  promise  to  pay  the  price  is  the  most  important 
part  of  the  contract  of  the  party  who  is  sought  to  be  charged.^*  It 
has  been  held,  however,  that  a  statement  of  the  price  is  not  neces- 
sary if  it  has  been  paid;  ^*  and  some  courts  hold  such  statement  not 

2  6  Atwood  V.  Cobb,  16  Pick.  (Mass.)  230,  26  Am.  Dec.  657.  And  see  ULL- 
SPERGER  V.  MEYER,  217  111.  262,  75  N.  E.  482,  2  L.  R.  A.  (N.  S.)  221,  3 
Ann.  Cas.  1032,  Throckmorton  Cas.  Contracts,  74;  Peck  v.  Vandemark,  99 
N.  Y.  29,  1  N.  E.  41;  Frazer  v.  Howe,  106  111.  563;  Farwell  v.  Mather,  10 
Allen  (Mass.)  322,  87  Am.  Dec.  641;  Gordon  v.  Avery,  102  N.  C.  532,  9  S.  E. 
486.     See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  113;   Cent.  Dig.  §§  2S9- 

2 T  Webster  v.  Brown,  67  Mich.  328,  34  N.  W.  676;  Fry  v.  Piatt,  32  Kan. 
62,  3  Pac.  781 ;  Hanson  v.  Marsh,  40  Minn.  1,  40  N.  W.  841 ;  Phelps  v.  Still- 
ings,  60  N.  H.  505;  Soles  v.  Hickman,  20  Pa.  180.  Contra  in  Texas,  Morri- 
son V.  Dailey  (Tex.)  6  S.  W.  426;    Fulton  v.  Robinson,  55  Tex.  401.     • 

"If  the  promise  in  terms,  however,  be  to  pay  what  the  goods  are  reason- 
ably worth,  or  if  the  promise  be  simply  to  pay  for  the  goods,  from  which  the 
law  would  infer  a  promise  to  pay  their  reasonable  worth,  then  no  definite 
or  fixed  price  need  be  stated  in  the  writing."  Turner  v.  Lorillard  Co.,  100 
Ga.  645,  28  S.  E.  383,  62  Am.  St.  Rep.  345,  per  Cobb,  J.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §  112;    Cent.  Dig.  §  23S. 

28  Ide  V.  Stanton,  15  Vt.  685,  40  Am.  Dec.  698;  Adams  v.  McMillan,  7  Port 
(Ala.)  73 ;  Hall  v.  Misenheimer,  137  N.  C.  183,  49  S.  E.  104,  107  Am.  St.  Rep. 
474.  In  the  case  last  cited  it  is  said,  per  Walker,  J.:  "There  is  quite  a  dif- 
ference between  the  price  to  be  paid  by  the  vendee  and  the  consideration  nec- 
essary to  support  the  contract  and  enforce  it  against  the  vendor.  The  latter 
can  be  shown  by  parol  as  at  common  law,  and  the  writing,  as  said  by  Ruflln, 
C.  J.,  in  Miller  v.  Irvine  [18  N.  C.  104],  need  not  contain  any  matters  but 
such  as  charge  him  (the  vendor) ;  that  is,  such  stipulations  as  are  to  be  per- 
formed on  his  part.  He  is  to  convey,  and  the  writing  must  be  sufiicient  to 
show  that  this  duty  rests  upon  him,  as  one  of  the  parties  to  the  contract, 
when  he  is  sought  to  be  charged.  The  vendee  is  to  pay  a  certain  price,  and 
the  writing  must  likewise  show  his  obligation — its  nature  and  extent — when 
the  action  is  against  him"  [citing  Clark  on  Contracts  (2d  Ed.)  pp.  85,  86,  87]. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  112;   Cent.  Dig.  §  2S8. 

29  Skyward  v..  Gardner,  5  Wash.  247,  31  Pac.  761,  33  Pac.  389.  Set 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  112;   Cent.  Dig.  §  238. 


§§    44-49)  FORM    REQUIRED  107 

necessary  to  the  sufficiency  of  a  memorandum  in  a  suit  by  the  ven- 
dee against  the  vendor.^" 

Even  where  the  price  is  stated,  some  courts  hold  the  memoran- 
dum insufficient  if  it  fails  to  state  the  terms  of  payment." 

Sho7ving  as  to  Subject-Matter 

The  writing  must  also  show  the  subject-matter,  at  least  to  such 
an  extent  that  it  can  be  identified. ^^  Parol  evidence  is  admitted  to 
identify  the  subject-matter  to  which  the  writing  refers;  as,  for  in- 
stance, to  identify  a  house  described  in  the  writing  as  a  "house  on 
Church  street,"  or  property  described  as  "your  half,  E.  B.  wharf, 
and  premises  this  day  agreed  upon  between  us."  ^*    Such  parol  evi- 

30  Hayes  v.  Jackson,  159  Mass.  451,  34  N.  E.  683  [overruling  Grace  v.  Deni- 
son,  114  Mass.  16] ;  White  v.  Dahlquist  Mfg.  Co.,  179  Mass.  427,  60  N.  E.  791  i 
Johnson  v.  Ronald,  4  Munf.  (Va.)  77.  Contra,  Kelly  v.  Thuey,  143  Mo.  422, 
45  S.  W.  300,  in  which  it  is  said,  per  Sherwood,  J.:  "At  one  time  in  this  court 
the  heresy  was  announced  that  parol  testimony  was  admissible  for  the  pur- 
pose indicated.  O'Neil  v.  Crain,  67  Mo.  251.  The  last  erroneous  adjudica- 
tion on  this  subject  is  found  in  Ellis  v.  Bray,  79  Mo.  227 ;  but  the  contrary 
and  correct  ruling  was  declared  in  Ringer  v.  Holtzclaw,  112  Mo.  519,  20  S. 
W.  800,  and  followed  in  Boyd  v.  Paul,  125  Mo.  9,  28  S.  W.  171."  And  see 
cases  cited  supra,  note  27.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.) 
§  112;   Cent.  Dig.  §  23S. 

81  Sault  V.  Stormont,  51  Mich.  636,  17  N.  W.  214;    Nelson  .v.  Shelby  Mfg. 

6  Imp.  Co.,  96  Ala.  515,  11  South.  695,  38  Am.  St.  Rep.  116  (memorandum 
relied  on  by  vendor  to  establish  validity  of  contract  against  vendee).  See 
''Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  112;   Cent.  Dig.  §  238. 

3  2Whelan  v.  Sullivan,  102  Mass.  204;  Beekman  v.  Fletcher,  48  Mich.  555, 
12  N   W    849 ;    Tice  v.  Freeman,  30  Minn.  3S9,  15  N.  W.  674 ;    King  v.  Wood, 

7  Mo.  389 ;  Mason  v.  Small,  130  Mo.  App.  249,  109  S.  W.  822.  "I  have  sold 
this  place"  is  not  sufficient.  Cunha  v.  Gallery,  29  R.  I.  230,  69  Atl.  lOUl,  18 
L  R  A.  (N.  S.)  616,  132  Am.  St.  Rep.  811.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No:)  §§  109,  110;    Cent.  Dig.  §§  222-236. 

3  3  Mead  v.  Parker,  115  Mass.  413,  15  Am.  Rep.  110;  Tallman  v.  Franklin, 
14  N  Y.  584 ;  Ryan  v.  United  States,  136  U.  S.  68,  10  Sup.  Ct.  913,  34  L.  Ed. 
447  •  Mellon  v.  Davison,  123  Pa.  298,  16  Atl.  431 ;  Henderson  v.  Perkins,  94 
Ky  '  207  21  S.  W.  1035 ;  Dougherty  v.  Chesnutt,  86  Tenn.  1,  5  S,  W.  444 ; 
Lente  v.  Clarke,  22  Fla.  515,  1  South.  149;  Cossitt  v.  Hobbs,  56  111.  231; 
llollis  V  Burgess,  37  Kan.  487,  15  Pac.  536;  Quinn  v.  Champagne,  38  Minn. 
3'>o  37  N  W  451 ;  Breckinridge  v.  Crocker,  78  Cal.  529,  21  Pac.  179 ;  Hum- 
bert V.  Brisbane,  25  S.  C.  506;  Oliver  v.  Hunting,  44  Ch.  Div.  205;  Francis 
V  Barry,  69  Mich.  311,  37  N.  W.  353.  A  memorandum  is  not  sufficient  where 
it  merely  describes  it  as  "an  estate  on  A.  street,  owned  by  B.,"  and  the  evi- 
dence shows  that  B.  owned  two  e.states  on  that  street.  Doherty  v.  Hill,  144 
Mass  405  11  N.  E.  581.  And  see  Jones  v.  Tye,  93  Ky.  390,  20  S.  W.  388; 
Alabama  Mineral  Land  Co',  v.  Jackson,  121  Ala.  172,  25  South.  709,  77  Am. 
St  Rep  40  "Your  land,"  in  a  letter  to  the  alleged  vendor  is  not  siifhcieut. 
Tavlor  v.  Allen,  40  Minn.  433,  42  N.  W.  292.  And  see  Lowe  v.  Harris,  112 
N  C  472  17  S.  E.  539,  22  L.  R.  A.  379.  A  memorandum  tliat  P.  shall  have 
the  land"  "of  which  he  is  now  in  possession"  has  been  held  sufficient     Phil- 


108  STATUTE   OF   FRAUDS  (Ch.  4 

dcnce,  however,  is  confined  to  evidence  of  the  location  of  objects 
mentioned,  the  circumstances  of  the  parties,  as,  for  example,  the 
property  owned  by  them,  and  other  external  matters,  and  does  not 
extend  to  spoken  language  passing  between  the  parties.^*  It  must 
be  confined  to  the  construction  and  application  of  the  writing  and 
may  not  be  used  to  add  to  or  subtract  from  it.'* 

Shonnng  as  to  Consideration 

Not  only  must  a  consideration  for  the  promise  sought  to  be  en- 
forced exist,  but  it  must,  according  to  the  rulings  in  England,  and 
probably  in  most  of  the  states,  expressly  or  impliedly  appear  in  the 
memorandum.  As  stated  by  Lord  EHenborough  in  the  leading  case 
on  this  point,  the  reason  for  the  rule  is  because  the  word  "agree- 
ment," used  in  the  statute,  "is  not  satisfied  unless  there  be  a  con- 
sideration, which  consideration,  forming  part  of  the  agreement, 
ought,  therefore,  to  have  been  shown ;  and  the  promise  is  not  bind- 
ing by  the  statute  unless  the  consideration  which  forms  part  of  the 
agreement  be  also  stated  in  writing."  "  Other  courts  have  refused 
to  recognize  this  doctrine,  though  in  some  of  these  cases  the  stat- 
ute used  the  word  "promise"  instead  of  "agreement."  "     Most  of 

lips  V.  Swank,  120  Pa.  76,  13  Atl.  712,  6  Am.  St.  Rep.  691.  And  see  Falls  of 
Neuse  Mfg.  Co.  v.  Hendricks,  106  N.  C.  485,  11  S.  E.  568.  An  agreement  for 
the  sale  of  a  designated  number  of  acres  "in"  a  specified  larger  tract  of  land 
is  not  sufficient.  Brockway  v.  Frost,  40  Minn.  155,  41  N.  W.  411.  And  see 
Repetti  v.  Maisak,  6  Mackey,  366.  See  "Frauds,  Statute  of,"  Dec^  Dig.  {Key- 
No.)  §§  109,  110,  158;    Cent.  Dig.  §§  222-236,  375. 

3  4  Desmarais  v.  Taft,  210  Mass.  560,  97  N.  E.  96.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  158;    Cent.  Dip.  §  375. 

8  8  Cole  V.  Cole,  99  Miss.  335,  54  South.  953,  34  L.  R.  A.  (N.  S.)  147,  Ann. 
Cas.  1913E,  332 ;  Bogard  v.  Barhan,  52  Or.  121,  96  Pac.  673,  132  Am.  St.  Rep. 
676.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  109-111;  Cent.  Dig: 
§§  222-237. 

3  6  Wain  V.  Warlters,  3  East,  10.  And  see  Sears  v.  Brink,  3  Johns.  (N.  Y.) 
210,  3  Am.  Dec.  475;  Taylor  v.  Pratt,  3  Wis.  674;  Thompson  v.  Blanchard,  3 
N.  Y.  335 ;  Ordeman  v.  Lawson,  49  Md.  135 ;  Sloan  v.  Wilson,  4  Har.  &  J. 
(Md.)  322,  7  Am.  Dec.  672 ; .  Buckley  v.  Beardslee,  5  N.  J.  Law,  572,  8  Am. 
Dec.  620;  Gregory  v.  Logan,  7  Blackf.  (Ind.)  112;  Ellison  v.  Water  Co.,  12 
Cal.  542;  Hargroves  v.  Cooke,  15  Ga.  321.  It  is  sufficient  If  the  considera- 
tion can  be  gathered  from  the  entire  contract.  The  words  "value  received" 
have  been  held  enough.  Watson's  Ex'rs  v.  McLaren,  19  Wend.  (N.  Y.)  557; 
D.  M.  Osborne  &  Co.  v.  Baker,  34  Minn.  307,  25  N.  W.  606,  57  Am.  Rep.  55 ; 
Edelin  v.  Gough,  5  Gill  (Md.)  103;  Emerson  v.  C.  Aultman  &  Co.,  09  Md. 
125,  14  Atl.  671;  Smith  v.  Northrup,  80  Hun,  65,  29  N.  Y.  Supp.  851.  The 
presence  of  a  seal  has  been  held  a  sufficient  recital  of  the  consideration. 
Johnston  v.  Wadsworth,  24  Or.  494,  34  Pac.  13 ;  Smith  v.  Northrup,  supra. 
See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  108;    Cent.  Dig.  §§  2U-221. 

3  7  Packard  v.  Richardson,  17  Mass.  122,  9  Am.  Dec.  123;  Brittain  v.  Ain- 
gier,  48  N.  H.  422;  Gillighan  v.  Boardman,  29  Me.  79;  Patchin  v.  Swift,  21 
VL  292;    Shively  v.  Black,  45  Pa.  345;    Sage  v.  Wilcox,  6  Conn.  81;    Violett 


§§    44r-49)  FORM   KEQUIRED  109 

the  states,  however,  have  put  this  question  at  rest  by  statutory 
provisions  expressly  declaring  it  necessary  *"  or  unnecessary  '*  to 
express  the  consideration  in  the  writing.  Even  where  the  statute 
provides  that  the  consideration  need  not  be  expressed,  it  must  be 
expressed  if  it  is  executory,  and  modifies  the  promise ;  for  in  such 
case  it  is  a  term  of  the  contract.*** 

Separate  Papers 

The  memorandum  may  consist  in  any  number  of  letters,  tele- 
grams, or  other  pieces  of  paper.*^  The  papers,  however,  must  be 
connected,  consistent,  and  complete. 

It  is  generally  held  that  the  connection  between  various  papers 
must  be  made  out  from  the  papers  themselves,*^  and  that  it  cannot 

V.  Patton,  5  Cranch,  151,  3  L.  Ed.  61  (construing  the  Virginia  statute) ;  Reed 
V.  Evans,  17  Oliio,  128;  Steadman  v.  Guthrie,  4  Mete.  (Ky.)  147;  Taylor  v. 
Ross,  3  Terg.  (Tenn.)  330;  Adkins  v.  Watson,  12  Tex.  199;  Halsa  v.  Halsa, 
8  Mo.  303;  How  v.  Kemball,  2  McLean,  103,  Fed.  Cas.  No.  6,748;  Brown  v. 
Fowler,  70  N.  H.  211,  47  Atl.  412.  See  ''Frauds,  Statute  of;'  Dec.  Dig.  (Key- 
No.)  §  lOS;    Cent.  Dig.  §§  2U-221. 

8  8  It  is  declared  necessary  in  Alabama,  Minnesota,  Nevada,  Oregon,  and 
Wisconsin.  But  the  amount  of  the  consideration  need  not  appear,  and  the 
words  "for  value  received"  are  sufficient.  Jansen  v.  Kuenzie,  145  Wis.  473, 
130  N.  W.  450,  Ann.  Cas.  1912A,  1241.  A  guaranty  of  a  note,  written  by  a 
third  person  on  the  note  before  delivery,  need  express  no  consideration,  since 
the  guaranty  requires  no  other  consideration  than  that  which  the  note  on 
its  face  implies  to  have  passed  between  the  original  parties.  Moses  v.  Bank, 
149  U.  S.  298,  13  Sup.  Ct.  900,  37  L.  Ed.  743  (under  Alabama  statute).  Con- 
tra: Commercial  Nat.  Bank  of  Appleton  v.  Smith.  107  Wis.  574,  83  N.  W.  766. 
It  is  otherwise  if  the  guaranty  is  written  after  the  note  has  been  delivered 
and  taken  effect  as  a  contract.  Moses  v.  Bank,  supra.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  108;    Cent.  Dig.  §§  2U-221. 

3  9  It  is  declared  unnecessary  in  Illinois,  Indiana,  Kentucky,  Maine.  Massa- 
chusetts, Michigan,  Nebraska,  New  Jersey,  and  Virginia.  See  Hayes  v.  Jack- 
son, 159  Mass.  451,  34  N.  E.  683.  See  ''Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  108;    Cent.  Dig.  §§  2U-221. 

40  See  Drake  v.  Seaman,  97  N.  Y.  230.  And  see  ante,  p.  106.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  108;    Cent.  Dig.  §§  2lJf-221. 

*i  LOUISVILLE  ASPHALT  VARNISH  CO.  v.  LORICK,  29  S.  C.  533,  8  S. 
E.  8,  2  L.  R.  A.  212,  Throckmorton  Cas.  Contracts,  80;  Reuss  v.  Picksley, 
L.  R.  1  Exch.  342 ;  Ryan  v.  United  States,  136  U.  S.  83,  10  Sup.  Ct.  913,  34  L. 
Ed.  447;  Hollis  v.  Burgess,  37  Kan.  487,  15  Pac.  536;  Lee  v.  Cherry,  85 
Tenn.  707,  4  S.  W.  835,  4  Am.  St.  Rep.  800;  Roehl  v.  Haumesser,  114  Ind. 
311,  15  N.  E.  345 ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Settegast,  79  Tex.  256,  15  S. 
W.  228;  Bayne  v.  Wiggins,  139  U.  S.  210,  11  Sup.  Ct.  521,  35  L.  Ed.  144; 
OLson  V.  Sharpless,  53  Minu.  91,  55  N.  W.  125;  Schneider  v.  Anderson,  75 
Kan.  11,  &S  Pac.  525,  121  Am.  St.  Rep.  356.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  108;    Cent.  Dig.  §§  21J,-221. 

♦2  If  all  the  separate  papers  are  signed,  reference  in  the  one  to  the  other 
Deo<l  not  Ije  made,  If  by  inspection  and  comparison  it  appears  that  they  form 
part  of  the  same  tiansaction.     Thayer  v.  Luce,  22  Ohio  St.  62.     See,  also, 


110  STATUTE   OF   FRAUDS  (Ch.  4 

be  shown  by  parol  evidence.*'  But,  if  one  paper  is  referred  to  in 
another,  it  may  be  identified  by  parol  evidence.** 

To  say  that  the  papers  must  be  consistent  is  merely  to  reiterate 
what  was  said  in  treating  of  offer  and  acceptance. 

Signature 

It  is  essential  that  the  memorandum  be  signed  by  "the  party  to 
be  charged,"  or  some  other  person  by  him  lawfully  authorized.*" 
As  to  whether  it  must  have  been  signed  by  the  party  seeking  to 
enforce  it,  there  is  some  conflict.  Probably  all  courts  hold  that  it 
need  not  be  so  signed  if  the  consideration  given  by  the  party  suing 
is  executed.  The  conflict  is  where  there  are  mutual  promises.  Some 
courts  hold  in  these  cases  that  the  contract,  not  being  enforceable 
against  the  party  who  has  not  signed  it,  is  void  for  want  of  mutual- 
ity.**   Most  courts  hold  that  the  statute  is  satisfied  if  the  memoran- 

Brewer  v.  Horst  &  Lachmund  Co.,  127  Cal.  &43,  60  Pac.  418,  50  L.  R.  A.  240. 
But  see  Potter  v.  Peters,  72  L.  J.  Rep.  624.  See  "Frauds,  Statute  of"  Dec. 
Dig.  (Key-No.)  §  118;    Cent.  Dig.  §  26^. 

4  3  Where  a  person  issued  a  prospectus  of  illustrations  of  Shakspeare,  to 
be  published  on  terms  of  subscription  therein  set  out,  and  A.  entered  his 
name  in  a  book  entitled  "Shakspeare  Subscribers,  their  Signatures,"  in  the 
publisher's  shop,  and  afterwards  refused  to  subscribe,  it  was  held  that  there 
was  no  sufficient  reference  to  connect  the  subscription  book  with  the  pro- 
spectus, so  as  to  make  a  memorandum.  Boydell  v.  Drunimond,  11  East,  142. 
And  see  Peirce  v.  Corf,  L.  R.  9  Q.  B.  210 ;  Taylor  v.  Smith,  61  Law  J.  Q.  B. 
3.31;  Morton  v.  Dean,  13  Mete.  (Mass.)  385;  O'Donnell  v.  Leeman,  43  Me. 
158,  69  Am.  Dec.  54 ;  Doughty  v.  Manhattan  Brass  Co.,  101  N.  Y.  644,  4  N.  E. 
747 ;  North  v.  Mendel,  73  Ga.  400,  54  Am.  Rep.  879 ;  Oliver  v.  Insurance  Co., 
82  Ala.  417,  2  South.  445 ;  Orne  v.  Cook,  31  111.  238 ;  DufC  v.  Hopkins  (D.  C.) 
33  Fed.  599;  Coombs  v.  Wilkes,  [1891]  3  Ch.  77;  Andrew  v.  Babcock,  63 
Conn.  109,  26  Atl.  715.  A  contract  for  the  sale  of  land,  containing  no  de- 
scription of  it,  was  held  insufficient,  though  there  was  a  description  of  land 
on  the  back  of  the  paper,  there  being  no  words  to  connect  the  indorsement 
with  the  contract.  Wilstach  v.  Heyd,  122  Ind.  574,  23  N.  E.  963.  Reciprocal 
wills  not  referring  to  each  other.  Hale  v.  Hale,  90  Va.  728,  19  S.  E.  739. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  118;   Cent.  Dig.  §  26^. 

4  4  Long  V.  Miller,  4  C.  P.  Div.  450;  Oliver  v.  Insurance  Co.,  82  Ala.  417,  2 
South.  445 ;  Beckwith  v.  Talbot,  95  U.  S.  289,  24  L.  Ed.  496 ;  Peck  v.  Vande- 
mark,  99  N.  Y.  29,  1  N.  E.  41 ;  Work  v.  Cowhick,  81  111.  317 ;  Lee  v.  Butler, 
167  Mass.  426,  46  N.  E.  52,  57  Am.  St.  Rep.  466.  See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §  118;    Cent.  Dig.  §  26^. 

48  Sanborn  v.  Sanborn,  7  Gray  (Mass.)  142;  Cloud  v.  Greasley,  125  111.  313, 
17  N.  E.  826;  Rafferty  v.  Lougee,  63  N.  H.  54;  Bailey  v.  Ogden,  3  Johns. 
(N.  Y.)  399,  3  Am.  Dec.  509;  Guthrie  v.  Anderson,  47  Kan.  383,  28  Pac.  164; 
Id.,  49  Kan.  416,  30  Pac.  459;  McElroy  v.  Seery,  61  Md.  389,  48  Am.  Rep. 
110;  Moore  v.  Powell,  6  Tex.  Civ.  App.  43,  25  S.  W.  472.  Cf.  Gardels  v. 
Kloke,  36  Neb.  493,  54  N.  W.  834.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  115;    Cent.  Dig.  §§  2J,2-250. 

46  Wilkinson  v.  Heavenrich,  58  Mich.  574,  26  N.  W.  139,  55  Am.  Rep.  708; 
Corbitt  V.  Gaslight  Co.,  6  Or.  405,  25  Am.  Rep.  541 ;   Krohn  v.  Bantz,  68  Ind. 


§§    44-49)  FOBM    REQUIRED  HI 

dum  is  signed  by  the  party  against  whom  it  is  sought  to  be  enforc- 
ed.*^ 

The  signature  may  be  by  mark  *^  or  initials,**  or  it  may  be  type- 
written,^**  printed,  stamped,  or  engraved."  Nor  need  the  signature 
be  placed  at  the  end  of  the  document  as  a  formal  signature.  If  the 
name  of  the  party  to-  be  charged  appear  in  the  memorandum,  so  as 
to  be  applicable  to  the  whole  substance  of  the  writing,  and  was 
written  by  himself,  or  by  his  authorized  agent,  it  is  immaterial 
where  the  name  appears,  whether  at  the  top  or  at  the  bottom,  or 
whether  it  is  merely  mentioned  in  the  body  of  the  memorandum. =^ 
Where,  however,  the  statute  requires  the  memorandum  to  be  "sub- 

277;    Stiles  v.  McClellan,  6  Colo.  89.     See  "Frauds,  Statute  of"  Dec.   Dig. 
(Key-Xo.)  §  115;    Cent.  Dig.  §§  2Ji2-250. 

47  ULLSPERGER  v.  MEYER,  217  III.  262,  75  N.  E.  4S2,  2  L.  R.  A.  (N.  S.) 
221,  3  Ann.  Cas.  1032,  Throckmorton  Cas.  Contracts,  74 ;  Justice  v.  Lang,  42 
N.  Y.  493,  1  Am.  Rep.  576;  Reuss  v.  Picksley,  L.  R.  1  Exch.  342;  Clason's 
Ex'rs  V.  Bailey,  14  Johns.  (N.  Y.)  487;  Old  Colony  R.  Co.  v.  Evans,  6  Gray 
(Mass.)  25,  66  Am.  Dec.  394 ;  Love  v.  Welch,  97  N.  C.  200,  2  S.  E.  242 ;  Wil- 
liams V.  Rohinson,  73  Me.  186,  40  Am.  Rep.  352;  Oliver  v.  Insurance  Co.,  82 
Ala.  417,  2  South.  445;  J.  I.  Case  Threshing  Mach.  Co.  v.  Smith,  16  Or.  381, 
18  Tac.  641 ;  Smith's  Appeal,  69  Pa.  481 ;  Anderson  v,  Harold,  10  Ohio,  399 ; 
Ives  V.  Hazard,  4  R.  I.  14,  67  Am.  Dec.  500;  Hodges  v.  Rowing,  58  Conn.  12, 
18  Atl.  979,  7  L.  R.  A.  87 ;  Perkins  v.  Hadsell,  50  111.  217 ;  Gartrell  v.  Staf- 
ford, 12  Neb.  545,  11  N.  W.  732,  41  Am.  Rep.  767 ;  Cunningham  v.  Williams, 
43  Mo.  App.  629 ;  Scott  v.  Glenn,  97  Cal.  513,  32  Pac.  573 ;  Jones  v.  Davis,  48 
N.  J.  Eq.  493,  21  Atl.  1035;  Capitol  City  Brick  Co.  v.  Atlanta  Ice  &  Coal  Co., 
5  Ga.  App.  436,  63  S.  E.  562.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-yo.) 
§  115;    Cent.  Dig.  §§  21,2-250. 

48  Baker  v.  Dening,  8  Adol.  &  E.  94;  Zacharie  v.  Franklin,  12  Pet.  151,  9 
L.  Ed.  1035;  Brown  v.  Bank,  6  Hill  (N.  Y.)  443,  41  Am.  Dec.  755.  See 
"Frauds,  Statute  of;'  Dec.  Dig.  {Key-No.)  §  115;   Cent.  Dig.  §§  2J,2-250. 

4  8  Sanborn  v.  Flagler,  9  Allen  (Mass.)  474;  Salmon  Falls  Mfg.  Co.  v.  God- 
dard,  14  How.  447,  14  L.  Ed.  493  ;  Palmer  v.  Stephens,  1  Denio  (N.  Y.)  471. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  115;    Cent.  Dig.  §§  2^2-250. 

BO  Garton  Toy  Co.  v.  Buswell  Lumber  &  Mfg.  Co.,  150  Wis.  341,  136  N.  W. 
147.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  115;  Cent.  Dig.  §§  2^2- 
250. 

61  Bennett  v.  Brumfitt,  L.  R.  3  C.  P.  30;  Drury  v.  Young,  58  Md.  546,  42 
Am.  Rep.  343;  Schneider  v.  Norris,  2  Maule  &  S.  286;  Weston  v.  Myers,  33 
111.  424.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  115;  Cent.  Dig. 
§^  2J,2-250. 

5  2  Davis  V.  Shields,  26  Wend.  (N.  Y.)  341,  353;  Coddington  v.  Goddard, 
16  Gray  (Mass.)  444  ;  Caton  v.  Caton,  L.  R.  2  H.  L.  127 ;  Clason's  Ex'rs  v. 
Bailey,  14  Johns.  (N.  Y.)  484 ;  Boardman  v.  Spooner,  13  Allen  (Mass.)  358,  90 
Am.  Dec.  196;  Penniman  v.  Hartshorn,  13  Mass.  87;  Evans  v.  Iloare  [1S92J 
1  Q.  B.  593;  Braley  v.  Kelly,  25  Minn.  160;  Tingley  v.  Boom  Co.,  5  Wash. 
(M4,  32  Pac.  737,  33  Pac.  1055.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-Noj> 
i  115;    Cent.  Dig.  §§  2^2-250, 


112  STATUTE   OF   FRAUDS  (Ch.  4 

scribed,"  it  has  been  held  that  there  must  be  a  formal  signature  at 
the  bottom  of  the  memorandum.*' 

A  party  to  a  contract  may  sign  a  rough  draft  of  its  terms,  and 
acknowledge  his  signature  when  the  draft  has  been  corrected,  and 
the  contract  is  actually  concluded."* 

Signature  by  Agent 

The  memorandum  may  be  signed  by  the  duly  authorized  agent 
of  the  party  to  be  charged.""  The  agent  must  not  be  the  other  con- 
tracting party,  but  some  third  person,  for  to  allow  otherwise  would 
be  to  open  the  door  for  the  fraud  which  the  statute  was  intended  to 
prevent."" 

The  same  person,  however,  as,  for  example  a  broker,  may  act  as 
agent  for  both  parties."^  So  in  cases  of  sales  at  auction,  the  auc- 
tioneer, acting  only  as  such,  is  the  competent  agent  of  both  parties, 
and  his  memorandum  is  binding  on  both.  He  is  the  agent  of  the 
vendor  by  virtue  of  his  employment,  and  he  is  made  the  agent  of 
the  vendee  by  the  act  of  the  latter  in  giving  him  his  bid,  and  receiv- 
ing the  announcement  that  the  property  is  knocked  off  to  him  as 
purchaser."®  This,  however,  does  not  apply  where  the  vendor  is 
himself  the  auctioneer."*  The  memorandum  must  be  made  at  the 
time  of  the  sale.®" 

6  3  Davis  V.  Shields,  26  Wend.  (X.  Y.)  341.  And  see  James  v.  Patten,  6  N. 
Y.  9,  55  Am.  Dec.  376;  Champlin  v.  Parrish,  11  Paige  (N.  Y.)  405.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  115;    Cent.  Dig.  §§  242-250. 

6  4  Stewart  v.  Eddowes,  L.  R.  9  C.  P.  314.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  115;    Cent.  Dig.  §§  242-250. 

6  6  Heffron  v,  Armsby,  61  Mich.  505,  28  N.  W.  672;  Tynan  v.  Dullnig  (Tex. 
Civ.  App.)  25  S.  W.  465.  See  "Frauds.  Statute  of,"  Dec.  Dig.  (Key-No.)  | 
116;   Cent.  Dig.  §§  251-260;   "Principal  and  Agent,"  Cent.  Dig.  §  S80. 

5  6  Bent  V.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295.  And  see  Sherman 
V.  Brandt,  L.  R.  6  Q.  B.  720;  Farebrother  v.  Simmons,  5  Barn.  &  Aid.  333; 
Carlisle  v.  Campbell,  76  Ala.  247;  Drury  v.  Young,  58  Md.  546,  42  Am.  Rep. 
343.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig.  §§  251- 
260. 

8  7  Ankeny  v.  Young  Bros.,  52  "Wash.  235,  100  Pac.  736.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §  116;    Cent.  Dig.  §§  251-260. 

6  8  Bent  V.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295;  Trustees  of  First 
Baptist  Church  of  Ithaca  v.  Bigelow,  16  Wend.  (N.  Y.)  28;  Morton  v.  Dean, 
13  Mete.  (Mass.)  385;  McBrayer  v.  Cohen  (Ky.)  18  S.  W.  123;  Meadows  v. 
Meadows,  3  McCord  (S.  C.)  458,  15  Am.  Dec.  645 ;  Singstack's  Ex'rs  v.  Hard- 
ing, 4  Har.  &  J.  (Md.)  186,  7  Am.  Dec.  669.  See  Wyckoff  v.  Mickle  (N.  J.  Ch.) 
20  Atl.  214.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig. 
§§  251-260. 

6  9  Bent  V.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §  116;    Cent.  Dig.  §§  251-260. 

6  0  Gill  V.  Bicknell,  2  Cush.  (Mass.)  355;  Horton  v.  McCarty,  53  Me.  394. 
See  '-Frauds,  Statute  of,"  Dec.  Diff.  (Key-No.)  §  116;    Cent.  Dig.  §§  251-?M. 


§§    44-49)  FORM    REQUIRED  J.13 

As  we  have  already  seen,  if  the  agent  signs  his  own  name,  the 
other  party  to  the  contract  may  show  by  parol  that  he  really  con- 
tracted with  the  principal. ^^    The  agent,  however,  after  making  the' 
contract  in  his  own  name,  cannot  show  by  parol  that  he  is  not  the 
real  party  to  the  contract.'^ 

Unless  the  statute  expressly  so  requires,  the  authority  of  the 
agent  need  not  be  in  writing.^^  In  some  states,  however,  the  stat- 
ute does  so  require  in  the  case  of  certain  contracts,  as  contracts  re- 
lating to  land,***  or  contracts  of  suretyship."*  ^ 

Delk-ery 

The  memorandum,  being  required  merely  as  evidence  of  the  con- 
tract, need  not  be  delivered. ®®  Nondelivery  is  only  material  in  so 
far  as  it  may  tend  to  shoAV  that  no  final  agreement  has  been  reach- 
ed. It  is  held,  however,  that  a  deed  of  land  must  be  delivered  to 
constitute  a  sufficient  memorandum.®''  A  delivery  of  the  deed  in 
escrow  is  sufficient.^' 

«i  Ante,  p.  105. 

82  Higgins  T.  Senior,  8  Mees.  &  W.  834  ;  Waring  v.  Mason,  18  Wend.  (N. 
T.)  425.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  116;  Cent.  Dig.  §§ 
251-260. 

63  Roebl  V.  Haumesser,  114  Ind.  311,  15  N.  E.  345;  Kennedy  v.  Ehlen,  31 
W.  Va.  540.  8  S.  E.  398;  Watson  v.  Slierman,  84  III.  at  page  2G7.  See 
"Frauds.  Statute  of,"  Dec.  Dig.  (Key-No.)  §  116;    Cent.  Dig.  §§  251-260. 

6  4  Hall  V.  Wallace,  88  Cal.  434,  26  Pac.  360;  Gerhart  v.  Pecli,  42  Mo.  App. 
644 ;  Castner  v.  Richardson,  18  Colo.  496,  33  Pac.  163 ;  Kozel  v.  Dearlove,  144 
111.  23.  32  N.  E.  542,  36  Am.  St.  Rep.  416;  Detroit,  P.  &  N.  Ry.  Co.  v.  Hartz, 
147  Mich.  354,  110  N.  W.  1089 ;  Thomas  v.  Rogers,  108  Minn.  132,  121  N.  W. 
6.30.  133  Am.  St  Rep.  421;  Adams  v.  Carlton,  77  Kan.  546,  95  Pac.  390;  Ross 
V.  Craven,  Si  Neb.  520,  121  N.  W.  451 ;  Cobban  v.  Hecklen,  27  Mont.  245,  70 
Pac.  805.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig. 
§§  251-260. 

65  Simpson  v.  Commonwealth,  89  Ky.  412,  12  S.  W.  630.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  116;    Cent.  Dig.  §§  251-260. 

6  6Drury  v.  Young,  58  Md.  546,  42  Am.  Rep.  343;  Ames  v.  Ames,  46  Ind. 
App.  597,  91  N.  E.  509.  See  "Frauds,  Statute  of,"  Dec  Dig.  (Key-No.)  §  117; 
Cent.  Dig.  §  261. 

6T  Wier  V.  Batdorf,  24  Neb.  83,  38  N.  W.  22;  Callanan  v.  Chapin,  158  Masi.. 
113.  32  N.  E.  941 ;  Swain  v.  Burnette,  89  Cal.  564,  26  Pac.  1093 ;  Day  v.  La- 
casse,  85  Me.  242,  27  Atl.  124.  And  see  Kopp  v.  Reiter.  146  111.  437,  34  N.  E. 
942,  22  L.  R.  A.  273,  37  Am.  St.  Rep.  156.  But  see  Johnston  v.  Jones,  85  Ala. 
286,  4  South.  748.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  117;  Cent. 
Dig.  §  261. 

6  8  .Johnston  v,  Jones,  85  Ala.  286,  4  South.  748;  Cannon  v.  Handley,  72 
Cal.  133,  13  Pac.  315;  Lewis  v.  Prather  (Ky.)  21  S.  W.  5.38.  But  see  Ducett 
V.  Wolf,  81  Mich.  311,  45  N.  W.  829.  See  "Frauds,  Statute  Of,"  Dec.  Dig. 
(Key-No.)  §  117;    Cent.  Dig.  §  261. 

Clakk  Cont.(3d  Ed.) — 8 


114  ,  STATUTE  OF  FRAUDS  (Ch.  4 


SAME— EFFECT    OF    NONCOMPLIANCE 

50-51.  Failure  to  comply  with  the  requirement  of  the  fourth  sec- 
tion does  not  render  the  contract  void,  but  merely  ex- 
cludes parol  proof,  and  renders  it  unenforceable. 

The  English  statute,  which  has  been  followed  by  the  statutes 
of  most  of  the  states,  does  not  declare  that  the  contracts,  if 
entered  into  orally,  shall  be  void,  but  simply  that  "no  action  shall 
be  brought"  on  them.  The  statute  does  not  go  to  the  existence 
of  the  contract,  but  merely  makes  written  evidence  necessary  to 
establish  it.  The  contract  is  not  void,  but  simply  unenforceable 
by  suit." 

Although  the  contract  cannot,  for  this  reason,  be  sued  upon  suc- 
cessfully, it  is  available  for  some  purposes.  If  it  has  been  fully 
performed,  the  courts  will  recognize  and  protect  the  rights  of  the 
parties  acquired  under  it.''"  And  if  it  has  been  performed  by  one 
of  the  parties  by  payment  of  the  consideration  he  will  not  be 
allowed  to  recover  back  what  he  has  paid,  where  the  other  party 
is  willing  to  perform  on  his  part.''^ 

89  BRITAIN  V.  ROSSITER,  11  Q.  B.  Dlv.  12.3,  Tbrockmorton,  Cas.  Con- 
tracts, 86 ;  Leroux  v.  Brown,  12  C.  B.  801  ;  Townsend  v.  Har^aves,  118 
Mass.  325;  Montague  v.  Garnett,  3  Bush  (Ky.)  297;  Baker  v.  Lauterbach, 
68  Md.  64,  11  Atl.  703 ;  Crane  v.  Gough,  4  Md.  316 ;  Newton  v.  Bronson,  13 
N.  Y.  587,  67  Am.  Dec.  89;  Brakefleld  v.  Anderson,  87  Tenn.  206,  10  S.  W. 
360;  Browning  v.  Parker,  17  R.  I.  183,  20  Atl.  835;  Ohio  &  M.  R.  Co.  v. 
Trapp,  4  Ind.  App.  69,  30  N.  E.  812;  Montgomery  v.  Edwards,  46  Vt  151,  14 
Am.  Rep.  618;  Chicago  Dock  Co.  v.  Kinzie,  49  111.  289;  La  Du-King  Mfg. 
Co.  V.  La  Du,  36  Minn.  443,  31  N.  W.  938;  Bird  v.  Munroe,  66  Me.  337,  22 
Am.  Rep.  571.  The  courts  often  usfe  the  word  "void"  carelessly,  and  the  fact 
that  they  speak  of  a  contract  as  void  cannot  always  be  relied  on.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  119,  125;  Cent.  Dig.  §§  113,  266- 
277. 

TO  See  supra,  note  69. 

71  Galway  v.  Shields,  66  Mo.  313,  27  Am.  Rep.  351;  Coughlln  v.  Knowles, 
7  Mete.  (Mass.)  57,  39  Am.  Dec.  759 ;  Sims  v.  Hutchins,  8  Smedes  &  M.  (Miss.) 
331,  47  Am.  Dec.  90 ;  Shaw  v.  Shaw,  6  Vt.  69 ;  Hawley  v.  Moody,  24  Vt.  605. 
And  see  Lane  v.  Shackford.  5  N.  H.  130;  Richards  v.  Allen,  17  Me.  296; 
Bedinger  v.  Whittamore,  2  J.  J.  Marsh.  (Ky.)  503 ;  Collier  v.  Coates,  17  Barb. 
(N.  Y.)  473 ;  McKinney  v.  Harvie,  38  Minn.  18,  35  N.  W.  608.  8  Am.  St.  Rep. 
640;  Nelson  v.  Improving  Co.,  96  Ala.  515,  11  South.  095,  38  Am.  St  Rep. 
116 ;  Butler  v.  Dinan,  65  Hun,  620,  19  N.  Y.  Supp.  950.  But  see  Hartwell  v. 
Young,  67  Hun,  472,  22  N.  Y.  Supp.  486,  in  which  it  was  held  that  a  person 
orally  employed  for  a  longer  period  than  a  year  may  abandon  the  contract 
without  fault  on  his  employer's  part,  and  recover  for  the  services  rendered ; 
post,  p.  119.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §S  119,  125; 
Cent.  Dig.  §§  113,  266-277. 


§§    50-51)  EFFECT   OF   NONCOMPLIANCE  115 

In  some  states,  however,  the  statute  declares  that  the  contract 
"shall  be  void"  unless  in  writing.^^  In  these  states  it  seems  that 
the  statute  goes  to  the  existence  of  the  contract,  and  renders  it 
absolutely  void.  In  a  Massachusetts  case,  however,  in  construing 
the  section  of  the  statute  of  that  state  relating  to  contracts  for  the 
sale  of  goods,  which  declared  that  no  such  contract  should  be 
held  to  be  good  and  "valid,"  it  was  held  that  it  was  not  the  inten- 
tion of  the  legislature  to  declare  such  contracts  void,  but  simply 
to  prevent  oral  proof." 

Further  illustration  of  the  rule  that  a  contract  which  does  not 
comply  with  the  statute  is  not  void,  but  simply  unenforceable,  is 
found  in  the  mode  in  which  courts  of  equity  deal  with  such  con- 
tracts, to  be  presently  explained. 

Part  Performance 

At  law,  unless  the  statute  so  provides,  part  performance  of  an 
oral  contract  does  not  take  it  out  of  the  operation  of  the  statute;  ^* 
but  it  is  otherwise  in  equity. 

Same — Jn  Equity 

A  court  of  equity  will  dispense  with  the  written  evidence  requir- 
ed by  the  statute  when  one  of  the  parties  has  under  certain  con- 
ditions performed  his  part  of  the  contract. 

The  equitable  rule  has  sometimes  been  limited  to  contracts 
relating  to  an  interest  in  land;^'  but  "it  is  probably  more  ac- 
curate to  say  that  the  doctrine  of  part  performance  applies  to 
all  cases  in  which  a  court  of  equity  would  entertain  a  suit  for 

TJ  See  Popp  V.  Swanke,  68  Wis.  364,  31  N.  W.  916.  Such  are  the  statutes 
of  Alabama,  California,  Michigan,  Nevada,  New  York,  Oregon,  and  Wisconsin. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  119,  125;  Cent.  Dig.  §§  113, 
266-275. 

TsTownsend  v.  Hargraves,  118  Mass.  325.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Kev-No.)  §§  119,  125;    Cent.  Dig.  §§  113,  266-277. 

T4  Chicago  Attachment  Co.  v.  Sewing-Mach.  Co.,  142  Hi.  171,  31  N.  E.  438, 
15  L.  R.  A.  754;  Henry  v.  Wells,  48  Ark.  485,  3  S.  W.  637;  Wheeler  v. 
P'rankeuthal,  78  111.  124;  Naily  v.  Reading,  107  Mo.  350,  17  S.  W.  978; 
Brown  v.  Pollard,  89  Va.  696,  17  S.  E.  6;  Seymour  v.  Oelrichs,  156  Cal.  782, 
lOG  Pac.  88,  134  Am.  St.  Rep.  154.  The  statute  does  expressly  provide  in 
Iowa,  Alabama,  and  probably  in  other  states,  that  certain  acts  of  part  per- 
formance shall  take  the  contract  out  of  the  statute.  Louisville  &  N.  R.  Co. 
V.  Philyaw,  94  Ala.  463,  10  South.  83;  Price  v.  Lien,  84  Iowa.  590,  51  N.  W. 
52.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  129;  Cent.  Dig.  §§  2S7- 
326. 

TB  BRITAIN  V.  ROSSITER,  11  Q,  B.  Div.  123,  Throckmorton,  Cas.  Con- 
tracts, 86.  And  see  Osborne  v.  Kimball,  41  Kan.  187,  21  Pac.  163;  McElroy 
T.  Ludlum,  32  N.  J.  Eq.  S2S.  As  to  contracts  in  consideration  of  marriage, 
see  ante,  p.  90.  As  to  contracts  not  to  be  performed  within  a  year,  see  ante, 
V.  99.     See  "Frauds,  Statute  of,"  Dec.  Dig.  (Kcy-\o.)  §  l/,2;    Cent.  Dig.  §  SiS. 


116  STATUTE   OF   FRAUDS  (Ch.  4 

specific  performance   if    the   alleged   contract   had   been    in   writ- 

Even  in  the  case  of  contracts  relating  to  land  it  is  not  enough 
that  services  have  been  rendered  in  consideration  of  an  oral  prom- 
ise to  grant  lands,  nor  that  the  price  has  otherwise  been  paid  in 
whole  or  in  part;  for  the  acts  relied  upon  as  part  performance 
"must  be  unequivocally,  and  in  their  own  nature,  referable  to 
some  such  agreement  as  that  alleged."  ^^  Where,  however,  the 
purchaser  has  taken  possession  ^*  under  an  oral  contract  for  the 

TO  McManus  v.  Cooke,  35  C.  D.  697,  per  Kay,  J.  See  Anson,  Cont.  (8th 
Ed.)  70.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Kej/-No.)  §  142;  Cent.  Dig. 
§  SJiS. 

T7  Maddison  v.  Alderson,  8  App.  Cas.  479,  7  Q.  B.  Div.  174.  In  this  case 
a  promise  of  a  gift  of  land  had  been  made  to  a  person  in  consideration  of 
her  remaining  in  the  service  of  the  promisor  during  his  lifetime.  It  was 
held  that  the  continuance  of  the  sei-vice  for  the  required  period  could  not  be 
regarded  as  exclusively  referable  to  the  promised  gift.  It  might  have  rested 
on  other  considerations.  And  see  Rogers  v.  Wolfe,  104  Mo.  1,  14  S.  W.  805 ; 
Sbahan  v.  Swan,  48  Ohio  St.  25,  26  N.  E.  222,  29  Am.  St.  Rep.  517;  Smith 
V.  Pierce,  65  Vt  200,  25  Atl.  1092.  But  see  Brinton  v.  Van  Cott,  8  Utah.  480, 
33  Pac  218.  That  payment  or  part  payment  of  the  purchase  money  ig  not 
alone  sufficient,  see  Glass  v.  Hulbert,  J02  Mass.,  at  page  28,  3  Am.  Rep.  418; 
Brown  v.  Pollard,  89  Va.  696,  17  S.  E.  6;  Peckham  v.  Balch,  49  Mich.  179, 
13  N.  W.  506;  Boulder  Valley  Ditch  Min.  &  Mill.  Co.  v.  Farnham,  12  Mont 
1,  29  Pac.  277 ;  Webster  v.  Gray,  37  Mich.  37 ;  Nibert  v.  Baghurst,  47  N.  J. 
Eq.  201,  20  Atl.  252 ;  Crabill  v.  Marsh,  38  Ohio  St.  331 ;  Townsend  v.  Van- 
derwerker,  20  D.  C.  197;  Washington  Brewery  Co.  v.  Carry  (Md.)  24  Atl. 
151;  Horn  v.  Luddington,  32  Wis.  73;  Forrester  v.  Flores,  64  Cal.  24,  28 
Pac.  107;  Gallagher  v.  Gallagher,  31  W.  Va.  9,  5  S.  E.  297;  Maxfleld  v. 
West,  6  Utah,  327,  379,  23  Pac.  754,  and  24  Pac.  98;  Humbert  v.  Brisbane, 
26  S.  C.  506 ;  Temple  v.  Johnson,  71  111.  13 ;  Cronk  v.  Trumble,  66  111.  428 ; 
Goddard  v.  Donaha,  42  Kan.  754,  22  Pac.  708.  Contra,  where  the  price  con- 
sisted of  the  dismissal  of  actions  and  marriage  with  a  certain  woman.  Slin- 
gerland  v.  Slingerland,  39  Minn.  197,  39  N.  W.  14G.  And  see  Barbour  v.  Bar- 
bour, 49  N.  J.  Eq.  429,  24  Atl.  227.  But  marriage  alone  between  the  vendor 
and  vendee  is  not  sufficient  Peek  v.  Peek,  77  Cal.  106,  19  Pac.  227,  1  L.  R. 
A.  185,  11  Am.  St.  Rep.  244.  It  is  otherwise  where  there  has  been  fraud  in 
procuring  the  marriage.  Id.  Promise  to  devise  laud  to  the  promisee's  daugh- 
ter If  he  will  allow  the  promisor  to  adopt  her.  Pond  v.  Sheean,  132  111.  312, 
23  N.  E.  1018,  8  L.  R.  A.  414.  Relinquishing  of  position  by  son-in-law,  and 
living  on  land  under  agreement  by  father-in-law  to  give  it  to  him.  Welch 
V.  Whelpley,  62  Mich.  15,  28  N.  W.  744,  4  Am.  St.  Rep.  810.  Delivery  of  deed 
as  part  performance.  Luzader  v.  Richmond,  128  Ind.  344,  27  N.  E.  736 ; 
Swain  v.  Burnette,  89  Cal.  5G4,  26  Pac.  1093.  See  ''Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  129;    Cent.  Dig.  §§  292,  307. 

7  8  As  to  what  constitutes  sufficient  possession,  see  Hunt  v.  Lipp,  .30  Neb. 
469,  46  N.  W.  632;  Emmel  v.  Hayes,  102  Mo.  186,  14  S.  W.  209,  11  L.  R.  A. 
323,  22  Am.  St  Rep.  769 ;  Neibert  v.  Baghurst  (N.  J.  Ch.)  25  Atl.  474 ;  Swales 
V.  Jackson,  126  Ind.  282,  26  N.  E.  62;  Cochran  v.  Ward,  5  Ind.  App.  89,  29 
N.  E.  795,  31  N.  E.  581,  51  Am.  St  Rep.  229.  See  "Frauds,  Statute  of,"  Dee. 
Dig.  (Key-No.)  §  lJi2;   Cent.  Dig.  §  S'tS. 


§§    50-51)  EFFECT   OF    NONCOMPLIANCE  117 

sale  of  land,  and  paid  the  purchase  money  or  other  considera- 
tion/' or  made  valuable  improvements  thereon,*"  equity  will 
enforce  performance  on  the  part  of  the  vendor.  "The  whole  doc- 
trine rests  upon  the  principle  of  fraud,  and  proceeds  upon  the 
idea  that  the  party  has  so  changed  his  situation,  on  the  faith  of 
the  oral  agreement,  that  it  would  be  a  fraud  upon  him  to  permit 
the  other  party  to  defeat  the  agreement  by  setting  up  the  stat- 
ute. *  *  *  The  change  of  situation  necessary  to  create  this 
equitable  estoppel  must,  of  course,  have  been  made  in  reliance 
upon,  and  in  pursuance  of,  the  oral  agreement,  and  so  connected 
with  the  performance  of  the  contract  that,  from  the  nature  of 
the  case,  the  defendant  should  understand  it  was  done  in  reliance 
upon  his  agreement."  *^  Possession,  to  constitute  such  part  per- 
formance as  to  warrant  the  interference  of  a  court  of  equity,  must 
have  been  under  the  contract,"^^  and  it  must  be  accompanied  by 

T»Beehtel  v.  Cone,  52  Md.  698;  Jamison  v.  Dimock,  95  Pa.  52;  Carney  v. 
Carney,  95  Mo.  353,  8  S.  W.  729 ;  Watts  v.  Witt,  39  S.  C.  356,  17  S.  E.  822 ; 
Fitzsimmons  v.  Allen,  39  ill.  440;  Lipp  v.  Hunt,  25  Neb.  91,  41  N.  W.  143; 
Gould  V.  Banking  Co.,  136  111.  60,  26  N.  E.  497;  Denlar  v.  Hile,  123  Ind.  68, 
24  X.  E.  170.  Contra,  Bradley  v.  Owsley,  74  Tex.  69,  11  S.  W.  1052.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  129;    Cent.  Dig.  §§  SlS-^21. 

so  Potter  V.  Jacobs,  111  Mass.  32;  Barrett  v.  Forney,  82  Va.  269;  Cutsin- 
ger  T«.  Ballard,  115  Ind.  93,  17  N.  E.  206;  Hunter  v.  Mills.  29  S.  C.  72,  6  S. 
E.  907 ;  Wallace  v.  Scoggins,  17  Or.  476,  21  Pac.  558 ;  Holmden  v.  Janes,  42 
Kan.  758,  21  Pac.  591 ;  Moulton  v.  Harris,  94  Cal.  420,  29  Pac.  706 ;  Mudgett 
V.  Clay,  5  Wash.  103,  31  Pac.  424 ;  Hunkins  v.  Hunkins,  65  N.  H.  95,  18  Atl. 
655 ;  Union  Pac.  R.  Co.  v.  McAlpine,  129  U.  S.  305,  9  Sup.  Ct.  286,  32  L.  Ed. 
-673;  Brown  v.  Sutton,  129  U.  S.  238,  9  Sup.  Ct.  273,  32  L.Ed.  664;  Mc- 
Whinne  v.  Martin,  77  Wis.  182,  46  N.  W.  118;  Morrison  v.  Herrick,  27  111. 
App.  339.  affirmed  in  130  111.  631,  22  N.  E.  537 ;  Townsend  v.  Vanderwerker. 
160  T'.  S.  171,  16  Sup.  Ct.  258,  40  L.  Ed.  383 ;  Anderson  v.  Brewing  Co.,  173 
111.  213,  50  N.  E.  655;  Low  v.  Low,  173  Mass.  580,  54  N.  E.  257.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  129;    Cent.  Dig.  §§  SlS-321. 

8  1  Brown  v.  Hoag,  35  Minn.  373,  29  N.  W.  135,  per  Mitchell,  J.  See,  also, 
Caton  V.  Caton,  L.  R.  1  Ch.  App.  147;  Semmes  v.  Worthington,  38  Md.  298; 
Wheeler  v.  Reynolds,  66  N.  Y.  227 ;  Sullivan  v.  O'Neal,  66  Tex.  433,  1  S.  W. 
185;  Purcell  v.  Miner,  4  Wall.  513,  18  L.  Ed.  435;  Clark  v.  Clark,  122  111. 
3S«^,  13  N.  E.  553 ;  McLeod  v,  Hendry,  126  Ga.  167,  54  S.  E.  949 ;  Henderson 
V.  Ilenrie,  68  W.  Va.  562,  71  S.  E.  172,  34  L.  R.  A.  (N.  S.)  628,  Ann.  Cas. 
1912B,  318;  Seaman  v.  Aschermann,  51  Wis.  678,  8  N.  W.  818,  37  Am.  Rep. 
849.     See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  129;    Cent.  Dig.  §  S07. 

«2  Jacobs  V.  Railroad  Co.,  8  Cush.  (Mass.)  224;  Purcell  v.  Miner,  4  Wall. 
513.  18  L.  Ed.  435;  Ducie  v.  Ford,  138  U.  S.  587,  11  Sup.  Ct.  417,  34  L.  Ed. 
1091 ;  Green  v.  Groves,  109  Ind.  519,  10  N.  E.  401 ;  Miller  v.  Ball,  64  N.  Y. 
at  page  292;  Birkbeck  v.  Kelly  (Pa.  Sup.)  9  Atl.  313;  Boozer  v.  Teague.  27 
S.  C.  .348,  3  S.  E.  551;  Mahana  v.  Blunt.  20  Iowa,  142;  Messmore  v.  Cun- 
ningham, 78  Mich.  623,  44  N.  W.  145;  Pawlak  v.  Granowski,  54  Minn.  130, 
55  N.  W.  8:31  ;  Clark  v.  Clark.  122  111.  388.  13  N.  E.  553;  Fo.ster  v.  Maginnis, 
89  Cal.  264,  26  Pac.  828.     See,  also,  cases  cited  suMia,  note  77.     Must  there- 


118  STATUTE   OF   FRAUDS  (Ch.  4 

payment  of  the  purchase  money,  or  by  valuable  and  permanent 
improvements.     Mere  possession  alone  is  not  enough.*^ 

It  has  frequently  been  said  that  improvements  without  pos- 
session are  not  sufficient;**  but,  on  the  other  hand,  the  making 
of  valuable  permanent  improvements  on  the  land  by  the  vendee,  in 
pursuance  of  the  agreement,  and  with  the  knowledge  of  the  other 
party,  is  always  considered  the  strongest  and  most  unequivocal 
act  of  part  performance  by  which  an  oral  contract  to  sell  land 
is  taken  out  of  the  statute;'"  and  the  better  opinion  is  that,  if 
the  vendee  has  no  adequate  remedy  at  law,  such  improvements 
are  sufficient,  even  where  not  accompanied  by  possession,  to  justify 
a  court  of  equity  in  granting  specific  performance  of  the  con- 
tract.«« 

A  few  of  the  courts  have  refused  to  recognize  the  doctrine  that 
part  performance  takes  a  contract  out  of  the  statute,*^  but  the  doc- 
trine is  supported  both  in  England  and  in  this  country  by  an  over- 
whelming weight  of  authority. 

Compelling  Execution  of  Writing 

In  some  states,  courts  of  equity,  in  the  exercise  of  their  juris- 
diction to  grant  relief  in  case  of  fraud,  have  compelled  the  execu- 
tion of  a  written  contract  where  the  party  sought  to  be  charged 
had  agreed  to  execute  it,  but  afterwards  fraudulently  refused  to 
keep  his  promise.®*     Other  courts  hold  that  refusal  to  execute  a 

fore  be  taken  after  the  making  of  the  contract  Wright  v.  Nulton,  219  Pa. 
253,  68  Atl.  707 ;  Maloy  v.  Boyett,  53  Fla.  956,  43  South.  243.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  120;    Cent.  Dig.  §  292. 

83  Glass  V.  Hulbert,  102  Mass.  at  page  32,  3  Am.  Rep.  418;  Hibbert  v. 
Aylott's  Heirs,  52  Tex.  530;  Miller  v.  Ball,  64  N.  Y.  at  page  292;  Dougan  v. 
Blocher,  24  Pa.  28;  Moore  v.  Small,  19  Pa.  401;  Galbreath  v.  Galbreath,  5 
Watts  (Pa.)  146;  Ann  Berta  Lodge  No.  42,  I.  O.  O.  F.,  v.  Leverton,  42  Tex. 
at  page  26.  But  see  Andrew  v.  Babcock,  63  Conn.  109,  26  Atl.  715;  Kenne- 
more  v.  Kennemore,  26  S.  C.  251,  1  S.  E.  881.  See  "Frauds,  Statute  of," 
Dee.  Dig.  (Key-No.)  §  129;    Cent.  Dig.  §§  S03-326. 

84  Wooldridge  v.  Hancock,  70  Tex.  18,  6  S.  W.  818.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  129;    Cent.  Dig.  §§  303-326. 

85Heurikson  v.  Henrikson,  143  Wis.  314,  127  N.  W.  962,  33  L.  R.  A.  (N. 
S.)  534.  And  see  Freeman  v.  Freeman,  43  N.  Y.  34,  3  Am.  Rep.  657  (sustain- 
ing gift  of  land  upon  evidence  of  possession  and  improvements).  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  12D;    Cent.  Dig.  §§  303-326. 

88  Henrikson  v.  Henrikson,  143  Wis.  314,  127  N.  W.  962,  33  L.  R.  A.  (N.  S.) 
534.  See  "Specific  Performance,"  Dec.  Dig.  (Key-No.)  §§  39-47;  Cent.  Dig. 
§§  lU-132. 

87  Dunn  V.  Moore,  38  N.  C.  364;  Ridley  v.  McNairy,  2  Humph.  (Tenn.)  174; 
Beaman  v.  Buck,  9  Smedes  &  M.  (Miss.)  207;  Pass  v.  Brooks,  125  N.  C.  129, 
84  S.  E.  228.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  129;  Cent. 
Dig.  §§  287-326. 

88  Equitable  Gaslight  Co.  of  Baltimore  City  v.  Manufacturing  Co.,  63  Md. 


§§    50-51)  EFFECT   OF   NONCOMPLIANCE  119 

written  contract  as  agreed  is  not  such  a  fraud  as  will  take  the  con- 
tract out  of  the  statute.*' 
Part  Performance — Recovery  Quasi  ex  Contractu 

Where  one  of  the  parties  to  an  oral  contract  within  the  statute 
of  frauds  pays  money  or  performs  services  thereunder,  of  which 
the  other  party  has  received  the  benefit,  the  law  implies  a  promise, 
or  rather  imposes  a  duty  upon  him,  to  pay  for  the  benefit  con- 
ferred; and  an  action  may  be  maintained  against  him,  not  upon 
the  contract,  but  upon  the  appropriate  common  counts  in  assump- 
sit, the  measure  of  recovery  being,  not  the  agreed  price,  but  the 
value  of  the  benefit  conferred. ®° 

The  Contract  as  a  Defense 

The  provision  that  "no  action  shall  be  brought"  on  oral  con- 
tracts within  the  statute  not  only  prevents  suit  on  such  a  contract, 

285 ;  Baker  v.  Baker,  2  S.  D.  261,  49  N.  W.  10G4,  39  Am.  St.  Rep.  776 ;  Mc- 
Donald V.  Tungbluth  (C.  C.)  46  Fed.  836.  In  Iowa  the  court  decreed  specific 
performance  of  a  parol  agreement  to  assign  a  patent  right,  though  Rev.  St 
U.  S.  §  4898  [TJ.  S.  Comp.  St.  1901,  p.  3387],  requires  assignments  to  be  in 
writing.  Searle  v.  Hill,  73  Iowa,  307,  35  N.  W.  490,  5  Am.  St.  Rep.  688.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  {Key-'So.)  §  59;    Cent.  Dig.  §§  11^-119. 

89Caylor  v.  Roe,  99  Ind.  1;  Jackson  v.  Myers,  120  Ind.  504,  22  N.  E.  90, 
and  23  N.  E.  86 ;  Feeney  v.  Howard,  79  Cal.  525,  21  Pac.  984,  4  L.  R.  A.  826, 
12  Am.  St  Rep.  162;  Safe  Deposit  &  Trust  Co.  of  Pittsburg  v.  Diamond  Coal 
&  Coke  Co.,  234  Pa.  100,  S3  Atl.  34.  And  see  Glass  v.  Hulbert  102  Mass. 
30,  3  Am.  Rep.  418.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-Vo.)  §  39; 
Cent.  Dig.  §§  114-119. 

80  Dowling  V.  McKenney,  124  Mass.  478;  Henrikson  v.  Henrikson,  143  Wis. 
314,  127  N.  W.  962,  33  L.  R.  A.  (N.  S.)  534 ;  Whipple  v.  Parker,  29  Mich.  369 ; 
Whitaker  v.  Burrows,  71  Hun,  478,  24  N.  Y.  Supp.  1011;  Patten  v.  Hicks, 
43  Cal.  509.  And  see  cases  cited  post,  note  92.  As  to  recovery  of  money 
or  other  consideration  paid,  see  Welch  v.  Darling,  59  Vt  136,  7  Atl.  547; 
Herrick  v.  Kewell,  49  Minn.  198,  51  N.  W.  819;  Schroeder  v.  Loeber,  75  Md. 
195,  23  Atl.  579,  and  24  Atl.  226;  Worth  v.  Patton,  5  Ind.  App.  272,  31  N.  E. 
1130;  Nelson  v.  Improvement  Co.,  96  Ala.  515,  11  South.  695,  38  Am.  St  Rep. 
116.  Recovery  for  services  rendered.  Cadman  v.  Markle,  76  Mich.  448,  43  N. 
W.  315,  5  L.  R.  A.  707 ;  Sprague  v.  Haines,  68  Tex.  215,  4  S.  W.  371 ;  Ste- 
vens v.  Lee,  70  Tex.  279,  8  S.  W.  40;  Ilartwell  v.  Young,  67  Hun,  472,  22  N. 
T.  Supp.  486;  Jeffery  v.  Walker,  72  Hun,  628,  25  N.  Y.  Supp.  161;  Won- 
settler  v.  Lee,  40  Kan.  367,  19  I'ac.  862 ;  Springer  v.  Bien  (Com.  PL)  10  N.  Y. 
Supp.  530;  Schoonover  v.  Vachon,  121  Ind.  3,  22  N.  E.  777;  Miller  v.  El- 
dredge,  126  Ind.  461,  27  N.  E.  132;  Taggart  v.  Tevanny,  1  Ind.  App.  339,  27 
N.  E.  511;  Koch  v.  Williams,  82  Wis.  186,  .52  N.  W.  257;  Stout's  Adm'r  v. 
Royston,  107  S.  W.  784,  32  Ky.  Law  Rep.  1055;  Wilson  v.  Wilderne.ss  Poul- 
try Farm,  82  N.  J.  Law,  352,  82  Atl.  517.  In  Minnesota,  Inconsistently,  the 
agreement  fi-xes  the  value  of  the  services  rendered  under  it  Kriger  v.  Lei> 
pel,  42  Minn.  6,  43  N.  W.  484;  Spinney  v.  Hill,  81  Minn.  316,  84  N.  W.  116. 
Recovery  of  expenses  incurred,  or  money  paid  for  the  use  of  the  other  party. 
Sprague  v.  Haines,  08  Tex.  215,  4  S.  W.  371.  Recovery  for  u.se  and  occu- 
pancy of  land  from  oue  who  has  used  It  under  a  parol  agreement  which  he 


120  STATUTE   OF  FRAUDS  (Ch.  4 

but  prevents  such  a  contract  from  being  set  up  as  a  defense,"^  as 
for  instance,  in  an  action  on  the  quantum  _nifix.uit.  by  a  party  who 
has  partly  performed  under  it,°*~^r  in  an  action  in  ejectment 
against  one  in  possession  of  land  under  an  oral  contract.^" 

Who  may  Plead  the  Statute 

The  benefits  of  the  statute  of  frauds  are  personal,  and  it  can 
only  be  set  up  by  the  parties  to  the  contract  or  their  privies.** 

Waiver  of  Statute 

A  contract  not  put  in  writing,  as  required  by  the  statute  of 
frauds,  not  being  void,  but  simply  unenforceable  by  suit,  the  fail- 
ure of  the  contract  to  comply  with  the  statute  may  be  waived  by 
the  party  to  be  charged.*"  It  is  generally  held  to  have  been  waived 
if  not  pleaded  as  a  defense,  unless  the  complaint  shows  that  the 
case  is  within  the  statute.*' 


refuses  to  carry  out  Walker  v.  Shackelford,  49  Ark.  503,  5  S.  W.  887,  4  Am. 
St.  Rep.  61 ;  post,  p.  650.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  § 
125;    Cent.  Dig.  §§  275-277 Vq. 

81  Simons  v.  New  Britain  Trust  Co.,  80  Conn.  263,  67  Atl.  883,  11  Ann.  Cas. 
477.     See  ''Frauds,  Statute  of,"  Dea  Dig.  (Key-No.)  §  I4I ;    Cent.  Dig.  §  SJiS. 

«2  King  V.  Welcome,  6  Gray  (Mass.)  41;  Baker  v.  Lauterbach,  68  Md.  64, 
11  Atl.  704;  McGinnis  v.  Feruandes,  126  111.  228,  19  N.  E.  44;  Lemon  v. 
Randall,  124  Mich.  687,  83  N.  W.  994.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  1^1;    Cent.  Dig.  §  SJ^S. 

93  Zeuske  v.  Zeuske,  55  Or.  65,  103  Pac  648,  105  Pac.  249,  Ann.  Cas.  1913A, 
556  (holding  that  the  acts  of  part  performance  were  available  only  in  equity 
to  take  the  case  out  of  the  statute).  See  "Frauds,  Statute  of"  Dec.  Dig. 
(Key-No.)  §  14I;    Cent.  Dig.  §  3:^8. 

»■*  Cahill  V.  Bigelow,  18  Pick.  (Mass.)  369;  Mewburn's  Heirs  v.  Bass,  82 
Ala.  622,  2  South.  520;  Briggs  v.  United  States,  143  U.  S.  346,  12  Sup.  Ct. 
391,  36  L.  Ed.  180;  Dailey  v.  Kinsler,  35  Neb.  835,  53  N.  W.  973;  Best  v. 
Davis,  44  111.  App.  624;  Grundies  v.  Kelso,  41  111.  App.  200;  Houser  v.  La- 
mont,  55  Pa.  311,  93  Am.  Dec.  755 ;  Book  v.  Mining  Co.  (C.  C.)  58  Fed.  106 ; 
Bullion  &  Exch.  Bank  v.  Otto  (C.  C.)  59  Fed.  256;  Chicago  Dock  Co.  v.  Kin- 
zie,  49  111.  289 ;  King  v.  Bushnell,  121  111.  656,.  13  N.  E.  245 ;  St.  Louis,  K.  & 
N.  W.  R.  Co.  v.  Clark,  121  Mo.  169,  25  S.  W.  192,  906,  26  L.  R.  A.  751.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  US;    Cent.  Dig.  §§  SU-S50. 

95  Montgomery  v.  Edwards,  46  Vt.  151,  14  Am.  Rep.  618;  Cosand  v.  Bun- 
ker, 2  S.  D.  294,  50  N.  W.  84 ;  Westfall  v.  Parsons,  16  Barb.  (N.  Y.)  645; 
Nunez  v.  Morgan,  77  Cal.  427,  19  Pac.  753 ;  Brakefield  v.  Anderson,  87  Tenn. 
206,  10  S.  W.  360;  Sarwell  v.  Sowles,  72  Vt.  270,  48  Atl.  11,  82  Am!  St.  Rep. 
943.     See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  lU;    Cent.  Dig.  §  351. 

96  Wells  V.  Monihan,  129  N.  Y.  161,  29  N.  E.  232;  McClure  v.  Otrich,  118 
111.  320,  8  N.  E.  784;  Cosand  v.  Bunker,  2  S.  D.  294,  50  N.  W.  84 ;  Espalla  v. 
Wilson,  80  Ala.  487,  5  South.  867 ;  Cozart  v.  Land  Co.,  113  N.  C.  294,  18  S.  E. 
337;  Hamill  v.  Hall,  4  Colo.  App.  290,  35  Pac.  927.  The  statute  must  be 
affirmatively  pleaded.  Blrchell  v.  Neaster,  36  Ohio  St.  331 ;  Crane  v.  Powell, 
139  N.  Y.  379,  34  N.  E.  911 ;  Citty  v.  Manufacturing  Co.,  93  Tenn.  276,  24  S. 
W.  121,  42  Am.  St  Rep.  919.     But  some  courts  hold  that  It  may  be  raise<5 


§    52)  CONTRACTS   WITHrN   SECTION    17  121 

Conflict  of  Laws 

By  the  rules  of  private  international  law  the  validity  of  a  con- 
tract, so  far  as  regards  its  formation,  is  determined  by  the  lex  loci 
contractus;  but  the  procedure,  including  the  proof,  in  an  ^action 
on  a  contract  is  governed  by  the  lex  fori.  In  a  leading  English 
case,  in  which  action  was  brought  in  Khg:land  on  a  verbal  contract 
made  in  France,  and  which  was  valid  and  enforceable  by  the 
French  law,  it  was  held  that,  as  the  statute  of  frauds  did  not  go 
to  the  existence  of  the  contract,  but  affected  the  procedure  only, 
and  prevented  proof,  the  statute  of  frauds  governed  the  case,  and 
prevented  a  recovery.'^  This  case  has  been  followed  by  the  courts 
of  some  of  our  states,  and  has  been  approved  by  the  federal  su- 
preme court.®*  The  courts  of  many  other  states,  however,  have 
held  the  contrary,  and  will  enforce  a  contract  so  long  as  it  is 
not  within  the  statute  of  frauds  of  the  state  in  which  it  was  made, 
and,  on  the  other  hand,  will  refuse  to  enforce  a  contract  which 
is  not  within  their  own  statute,  but  is  within  the  statute  of  the 
state  in  which  it  was  made.®" 


SAME— CONTRACTS    WITHIN    SECTION    17 

52.  IN  GENERAL.  The  seventeenth  section  of  the  English  stat- 
ute, which  has  been  substantially  followed  in  most  of 
the  states,  enacts  that  "no  contract  for  the  sale  of  any 
goods,  wares  or  merchandises,  for  the  price  of  £10  ster- 
ling, or  upwards,  shall  be  allowed  to  be  good,  except 

nnder  a  general  denial.  Fountaine  v.  Bush,  40  Minn.  141,  46  N.  W.  465,  12 
Am.  St  Rep.  722 ;  Hurt  v.  Ford,  142  Mo.  283,  44  S.  W.  228,  41  L.  R.  A.  82.3  ; 
Barrett  v.  McAllister,  33  W.  Va.  738,  11  S.  E.  220.  If  the  answer  admits  the 
contract,  the  statute  must  be  pleaded.  Iverson  v.  Cirkel,  56  Minn.  299,  57  X. 
W.  800;  Barrett  v.  McAllister,  supra.  See  "Frauds,  Statute  of,"  Dec.  Dvj. 
(Key-No.)  §  lU;    Gent.  Dig.  §  351. 

07  Leroux  v.  Brown,  12  C.  B.  801.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  120;    Cent.  Dig.  §  26S. 

08  Downer  v.  Che.sebrough,  36  Conn.  39,  4  Am.  Rep.  29;  Hunt  v.  Jones, 
12  R.  I.  265,  34  Am.  Rep.  635 ;  Pritchard  v.  Norton,  106  U.  S.  134,  1  Sup.  Ct. 
102,  27  L.  Ed.  104 ;  Heatou  v.  Eldridge,  56  Ohio  St.  87,  46  N.  E.  638,  36  L.  R. 
A.  817,  60  Am.  St.  Rep.  737;  Buhl  v.  Stephens  (C.  C.)  84  Fed.  922.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  120;    Cent.  Dig.  §  26-8. 

99  Dacosta  v.  Davis,  24  N.  J.  Law,  319;  Cochran  v.  Ward,  5  Ind.  App.  89, 
20  N.  E.  795,  31  N.  E.  581,  51  Am.  St  Rep.  229;  Donny  v.  Williams,  5  Allen 
(Mass.)  1 ;  Allshouse  v.  Ramsay,  6  Whart  (Pa.)  331,  37  Am.  Dec.  417 ;  Houijh- 
tallng  V.  Ball,  20  Mo.  oKJ ;  Low  v.  Andrews,  1  Story,  38,  Fed.  Cas.  No.  8,559 ; 
Miller  V.  Wilson,  146  111.  52.3,  34  N.  E.  1111,  37  Am.  St  Rep.  180.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  120;    Coit.  Dig.  §  268. 


122  STATUTE   OF   FRAUDS  (Ch.  4 

~    (a)  "The  buyer  shall  accept  part  of  the  goods  so  sold,  and  actu- 
ally receive  the  same, 

(b)  "Or  give  something  in  earnest  to  bind  the  bargain,  or  in 

part  payment, 

(c)  "Or  that  some  note  or  memorandum  in  writing  of  the  said 

bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  au- 
thorized." 

53.  EXECUTORY  SALE.    The  section  applies  to  executory  con- 

tracts to  sell  as  well  as  to  executed  contracts  of  sale. 

54.  WORK  AND  LABOR.     It  does  not  apply  to  contracts  for 

work,  labor,  and  materials,  but  a  contract  is  not  deemed 
to  be  one  for  work,  labor,  and  materials, 

(a)  In  England  and  some  states,  where  it  contemplates  the  ulti- 

mate transfer  of  the  property  in  a  chattel  for  a  price,  al- 
though the  chattel  is  to  be  made. 

(b)  In   most  jurisdictions,   where   the    chattel,   although   to   be 

made,  is  one  which  the  seller  ordinarily  makes  and  sells 
in  the  course  of  his  business.  It  is  otherwise  if  it  is  one 
which  must  be  specially  manufactured. 

(c)  In  New  York  and  some  other  states,  where  the  chattel  is 

in  existence,  although  the  seller  is  to  adapt  it  to  the  use 
of  the  buyer. 


SAME— Vv^HAT   ARE    GOODS,   WARES,    AND    MERCHAN- 
DISES 

55.  "Goods,  wares,  and  merchandises"  comprehend: 

(a)  All  corporeal  movable  property. 

(b)  In  the  United  States,  generally  (but  not  in  England),  incor- 

poreal property,  such  as  shares,  bonds,  notes,  etc. 

(c)  Fructus  naturales  and  fructus  industriales,  where  the  owner- 

ship is  not  to  pass  until  after  severance. 

(d)  Fructus  industriales  (perhaps)  also  where  the  ownership  is 

to  pass  before  severance. 

The  treatment  of  this  section  belongs  more  properly  to  a  work  on 
the  law  of  sales,  and  the  rules  governing  its  application  will  be  very 
briefly  indicated.^    While  it  is  a  part  of  the  statute  law  of  most  of 

1  See  Tiffany,  Sales,  35-SL 


§    55)  WHAT   AKE    GOODS,  WARES,  AND   MEKCHANDISES  123 

the  states,  in  others  it  has  never  been  enacted  or  has  been  repealed, 
and  is  not  now  the  law.' 

Although  there  was  doubt  in  England,  to  remove  which  a  special 
statute  was  enacted,  it  has  been  held  with  us  that  the  statute  ap- 
plies not  only  to  executed  contracts  of  sale,  but  also  to  executory- 
contracts,  as,  for  instance,  where  the  goods  are  not  specified,  but 
are  to  be  afterwards  obtained  by  the  seller,  or  selected  and  set  apart 
to  the  purchaser.' 

'It  also  applies  to  sales  at  public  auction  as  well  as  private  sales;  * 
and  to  contracts  of  barter  or  exchange.' 

A  contract  for  the  sale  of  goods  is  not  taken  out  of  the  operation 
of  the  statute  by  the  fact  that  there  are  other  stipulations  to  which 
the  statute  does  not  apply.®  The  contract  must  be  for  the  sale  of 
goods,  and  a  promise,  therefore,  by  the  seller  of  bonds  or  other 
goods  to  take  them  back  is  not  within  the  statute.  It  is  a  promise 
to  rescind  the  sale,  not  a  promise  to  sell.''  So,  also,  a  contract  by 
which  one  of  the  parties  is  to  purchase  goods  for  the  other  at  a 
certain  price,  the  latter  agreeing  to  receive  and  pay  for  them  on  de- 
livery, is  a  contract  of  agency,  and  not  of  bargain  and  sale,  and  is, 
therefore,  not  within  the  statute.**  Nor  is  an  oral  agreement  for  a 
trading  venture,  by  which  one  party  agrees  to  account  to  the  other 
for  half  the  profits  in  consideration  that  the  other  shall  bear  half 
the  losses,  within  the  statute." 

2  It  Is  not  In  force  in  Virginia,  West  Virginia,  Kentucky,  North  Carolina, 
and  other  states.  See  Odom  v.  Clark,  146  N.  C.  544,  CO  S.  E.  513.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  81;    Cent.  Dip.  §  IJ^O. 

3  Bennett  v.  Hull,  10  Johns.  (N.  Y.)  364;  Lamb  v.  Crafts,  12  Mete.  (Mass.) 
353;  Edwards  v.  Railroad  Co.,  48  Me.  379;  Franklin  v.  Long,  7  Gill  &  J. 
(Md.)  407;  Cason  v.  Cheely,  6  Ga.  554;  Sawyer  v.  Ware,  36  Ala.  676;  Me- 
chanical Boiler-Cleaner  Co.  v.  Kellner,  62  N.  J.  Law,  544,  43  Atl.  599.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Keij-No.)  §§  83S6 ;    Cent.  Dig.  §§  lJt2-lGl. 

*  Siiigstack's  Ex'rs  v.  Harding,  4  Har.  &  J.  (Md.)  186,  7  Am.  Dec.  669. 
See,  also,  ante,  p.  112.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  84; 
Cent.  Dig.  §§  151,-lGl. 

6  Franklin  v.  Matea  Gold  Min.  Co.,  158  Fed.  941,  86  C.  C.  A.  145,  16  L.  E. 
A.  (N.  S.)  381,  14  Ann.  Cas.  302.  See  "Frauds,  Statute  of"  Dec.  Dig.  (Key- 
No.)  §§  83-85;    Cen,t.  Dig.  §§  11,2-161. 

e  Hanson  v.  Marsh,  40  Minn.  1,  40  N.  W.  841.  See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §§  83-S6;    Cent.  Dig.  §§  11,2-161. 

T  Johnston  v.  Trask,  116  N.  Y.  136,  22  N.  E.  377,  5  L.  R.  A.  630,  15  Am.  St. 
Rep.  394.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  8J,;  Cent.  Dig.  §§ 
15.1,-161. 

8  Hatch  V.  McBrien,  83  Mich.  1.^)9,  47  N.  W.  214.  See  "Frauds,  Statute  of," 
Dec.  Dig.  (Key-No.)  §  8^;    Cent.  nig.  §§  15J,-161. 

e  Coleman  v.  Eyre,  45  N.  Y.  41;  Green  v.  Brooklns,  23  Mich.  48,  9  Am. 
Rep.  74.  See  "Frauds,  Statute  of,"  Dec^  Dig.  (Key-No.)  §  84;  Cent.  Dig.  §§ 
151,-161. 


124  STATUTE   OF   FRAUDS  (Ch.  4 

Value 

In  most  states  the  statute  fixes  the  value  of  the  goods  under  this 
section  at  $50;  but  in  some  the  value  is  fixed  at  a  greater  or  less 
amount,  and  in  two,  at  least,  all  contracts  of  sale  are  within  the 
statute. 

Where  several  articles,  all  of  which  together  exceed,  but  no  one  of 
which  alone  reaches,  the  value  specified  in  the  statute,  are  pur- 
chased independently  at  different  times,  each  purchase  is  a  separate 
contract,  and  is  not  within  the  statute ;  but  it  is  otherwise  if  they 
are  all  purchased  at  the  same  time,  in  one  and  the  same  transac- 
tion.^" 

Contracts  for  Work,  Labor,  and  Materials 

A  difficult  question  has  arisen  where  labor  has  to  be  expended  on 
the  thing  sold  before  the  contract  is  executed,  and  the  property 
transferred,  as  to  whether  the  contract  is  for  the  sale  of  goods  with- 
in the  seventeenth  section,  or  for  work  and  labor,  and  therefore  en- 
forceable if  to  be  performed  within  a  year,  so  as  not  to  be  within 
the  fourth  section.    The  decisions  on  this  question  are  not  in  accord. 

In  England  it  is  held  that  the  contract  is  for  a  sale  of  goods  if  it 
contemplates  the  ultimate  transfer  of  the  property  in  a  chattel.  "If 
the  contract  be  such  that  it  will  result  in  the  sale  of  a  chattel,"  it 
was  said  in  the  leading  English  case,  "the  proper  form  of  action,  if 
the  employer  refuses  to  accept  the  article  when  made,  would  be  for 
not  accepting.  But  if  the  work  and  labor  be  bestowed  in  such  a 
manner  as  that  the  result  would  not  be  anything  which  could  prop- 
erly be  said  to  be  the  subject  of  sale,  then  an  action  for  work  and 
labor  would  be  the  proper  remedy."  ^^ 

The  English  rule  has  been  followed  to  some  extent  in  this  coun- 
try,^^  but  in  most  jurisdictions  it  has  been  rejected. ^^ 

In  some  states  it  is  held  that  a  contract  for  the  sale  of  something 
which  the  seller  ordinarily  makes  and  sells  in  the  course  of  his  busi- 
ness is  a  contract  for  the  sale  of  goods,  and  not  for  work  and  labor, 
though  he  may  not  have  the  goods  on  hand,  but  may  have  to  mah- 
ufacture  them;  but,  if  the  goods  are  not  such  as  he  ordinarily 
makes,  and  have  to  be  specially  manufactured  for  the  buyer,  the 

10  Baldey  v.  Parker,  2  Barn.  &  C.  37.  See  ''Frauds,  Statute  of,"  Dec.  Dig. 
(Eeu-No.)  §  85;    Cent.  Dig.  §  Ul. 

11  Lee  V.  Griffin,  1  Best  &  S.  27'-'.  See  "Frauds,  Statute  of,**  Dec.  Dig. 
(Key-No.)  §  8S;   Cent.  Dig.  §§  U7-153. 

12  Pratt  V.  Miller,  109  Mo.  78,  18  S.  W.  965,  32  Am.  St.  Rep.  636 ;  Burrell 
V.  Hl,2;bleymaD,  33  Mo.  App.  183.  See  "Frauds,  Statute  of,"  Deo.  Dig.  (Key- 
No.)  ^83;    Cent.  Dig.  §§  U1-15S. 

18  See  cases  cited  post,  notes  14,  15. 


§    55)    •  WHAT   ARE    GOODS,  WARES,  AND   MERCHANDISES  125 

contract  is  for  work  and  labor.^*  This  is  commonly  called  the  Mas- 
sachusetts rule  and  has  been  so  generally  adopted  that  it  is  some- 
times referred  to  as  the  American  rule. 

By  the  New  York  rule,  which  also  prevails  in  a  few  other  states,  a 
distinction  is  made  between  goods  in  existence  when  the  contract 
is  made  and  goods  that  have  to  be  manufactured,  and  it  is  held  that 
when  the  chattel  is  in  existence  the  contract  should  be  deemed  one 
of  sale,  even  though  it  may  have  been  ordered  from  a  seller  who  is 
to  do  some  work  upon  it  to  adapt  it  to  the  uses  of  the  purchaser. 
Such  a  rule  makes  but  a  single  distinction,  and  that  is  between  ex- 
isting and  nonexisting  chattels.^' 

In  some  states  this  question  is  regulated  by  special  provisions  of 
the  statute.^" 

Goods,  Wares,  and  Merchandises 

In  England  the  term  "goods,  wares,  and  merchandises"  has  been 
limited  to  corporeal  movable  property,  and  is  held  not  to  include 
shares  of  stock,  choses  in  action,  and  other  incorporeal  rights  and 
property,^'   and  the  courts  of  some  of  our  states  have  taken  the 

14  HEINTZ  V.  BURKHARD,  29  Or.  55,  43  Pac.  866,  31  L.  R.  A.  508,  54  Am. 
St.  Rep.  777,  Throckmorton  Cas.  Contracts,  94.  Goddard  v.  Binney,  115  Mass. 
450,  15  Am.  Rep.  112;  Lamb  v.  Crafts,  12  Mete.  (Mass.)  353;  Mixer  v.  How- 
arth,  21  Pick.  (Mass.)  205,  32  Am.  Dec.  256 ;  Atwater  v.  Hough,  29  Conn.  509, 
79  Am.  Dec.  229 ;  Crockett  v.  Scribner,  64  Me.  447 ;  Edwards  v.  Railroad  Co., 
48  Me.  379;  Finney  v.  Apgar,  31  N.  J.  Law,  267;  Central  Lith.  &  E.  Co.  v. 
Moore,  75  Wis.  170,  43  N.  W.  1124,  6  L.  R.  A.  788,  17  Am.  St.  Rep.  186; 
Brown  &  Haywood  Co.  v.  Wunder,  64  Minn.- 450,  67  N.  W.  S57,  32  L.  R.  A. 
593  ;  Bauscher  v.  Gies,  160  Mich.  502,  125  N.  W.  420 ;  Moore  v.  Camden  Mar- 
ble &  Granite  Works,  80  Ark.  274,  96  S.  W.  1063,  117  Am.  St  Rep.  87,  10 
Ann.  Cas.  308.  See,  also.  Mechanical  Boiler-Cleaner  Co.  v.  Kellner,  62  N.  J. 
Law,  544,  43  Atl.  599.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  83; 
Cent.  Dig.  §§  11,7-153. 

18  Parsons  v.  Loucks,  48  N.  T.  17,  8  Am.  Rep.  517;  Cooke  v.  Millard,  65 
N.  Y.  352,  22  Am.  Rep.  619 ;  Deal  v.  Maxwell,  51  N.  Y.  652 ;  Higgins  v.  Mur- 
ray, 73  N.  Y.  252;  Alfred  Shrimpton  &  Sons  v.  Dworsky,  2  Misc.  Rep.  123, 
21  N.  Y.  Supp.  461 ;  Eichelberger  v.  McCauley,  5  Har.  &  J.  (Md.)  213,  9  Am. 
Dec.  514 ;  Rentch  v.  Long,  27  Md.  188.  And  ^see  Wallace  v.  Dowling,  86  S.  C. 
307,  08  S.  E.  571,  138  Am.  St.  Rep.  1054.  A  contract  to  paint  a  portrait  is 
not  within  the  statute.  Turner  v.  Mason,  65  Mich.  662,  32  N.  W.  846.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  S3;   Cent.  Dig.  §§  Ul-153. 

18  Mighell  V.  Dougherty,  86  Iowa,  4S0,  53  N.  W.  402,  17  L.  R.  A.  755,  41 
Am.  St.  Rep.  511.  In  some  states  the  statute  expressly  excepts  goods  to  be 
manufactured.  Flynn  v.  Dougherty,  01  Cal.  669,  27  Pac.  1080,  14  L.  R.  A. 
230.  See  "Frauds,  Statute  of."  Dec.  Dig.  (Key-No.)  §§  81,  S3;  Cent.  Dig.  §§ 
140,  147-153. 

17  Humble  v.  Mitchell,  11  Adol.  &  E.  205.  And  see  Pickering  v.  Appleby, 
CoTiyn,  354.  Bee  "Frauds.  Statute  of,"  Dec.  Dig.  (Key-No.)  §  82;  Cent.  Dig. 
U  143-146. 


126  STATUTE   OF   FRAUDS  (Ch.  4 

same  view.**  In  other  states  it  is  held  that  shares  of  stock,  prom- 
issory notes,  bonds,  and  the  like,  are  "goods,  wares,  and  merchan- 
dise." ^"  It  has  also  been  held  that  a  sale  of  book  accounts, ^^  or 
of  land  scrip, ^*  is  within  the  statute,  but  not  an  agreement  for  sale 
of  an  interest  in  an  invention  before  letters  patent  are  obtained.^' 
In  some  states  the  statute  uses  the  words  "personal  property,"  and 
these  would,  of  course,  apply  to  choses  in  action.^'  In  other  states 
the  statute  expressly  mentions  choses  in  action. 

As  we  have  already  seen,  "fructus  industrials"  are  not  an  inter- 
est in  land,  within  the  fourth  section.^*  They  are  chattels,  but  it 
is  an  open  question  whether  they  are  "goods,  wares,  and  merchan- 
dises," within  the  seventeenth  section.-"*  So,  also,  a  sale  of  "fructus 
naturales,"  or  the  natural  growth  of  land,  not  being  of  an  interest 
in  land  where  title  is  not  to  pass  until  after  severance,  is  regarded 
as  within  the  seventeenth  section.  Some  courts,  indeed,  hold  this 
to  be  so  though  title  is  to  pass  before  severance.^®  The  question, 
however,  is  intricate,  and  the  authorities  conflicting,  and  it  cannot 
be  properly  treated  at  any  length  in  an  elementary  work  on  con- 
tracts. 

isWhittemore  v.  GIbbs,  24  N.  H.  4S4;  Vawter  v.  Griffin,  40  Ind.  593; 
Webb  V.  Railroad  Co.,  77  Md.  92,  26  Atl.  113,  39  Am.  St.  Rep.  396.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  S2 ;    Cent.  Dig.  §§  l-i3-lJ,6. 

19  Tisdale  v.  Harris,  20  Pick.  (Mass.)  9 ;  Boardman  v.  Cutter,  128  Mass. 
388;  BALDWIN  v.  WILLIAMS,  3  Mete.  (Mass.)  365,  Throcl<;morton  Cas.  Con- 
tracts, 92 ;  Gooch  v.  Holmes,  41  Me.  523 ;  Hudson  v.  Weir,  29  Ala.  294 ;  Pray 
V.  Mitchell,  60  Me.  430;  North  v.  Forest,  15  Conn.  400;  Hinchman  v.  Lin- 
coln, 124  U.  S.  38,  8  Sup.  Ct.  309,  31  L.  Ed.  337 ;  Bernhardt  v.  Walls,  29  Mo. 
App.  206;  Greenwood  v.  Law,  55  N.  J.  Law,  168,  26  Atl.  134,  19  L.  R.  A. 
688;  Meehan  v.  Sharp,  151  Mass.  564,  24  N.  E.  907;  Sprague  v.  Hosie,  155 
Mich.  30,  lis  N.  W.  497,  19  L.  R.  A.  (N.  S.)  874,  130  Am.  St  Rep.  558.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  82;   Cent.  Dig.  §§  US-l^G. 

2  0  Walker  v.  Supple,  54  Ga.  178.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  82;    Cent.  Dig.  §§  11,8-11,6. 

2x  Smith  V.  Bouck,  33  Wis.  19.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  82;    Cent.  Dig.  §§  11,3-11,6. 

22  Somerby  v.  Buntin,  118  Mass.  279,  19  Am.  Rep.  459;  Blakeney  v.  Goode, 
30  Ohio  St.  350.  But  see  Jones  v.  Reynolds,  120  N.  Y.  213,  24  N.  E.  279.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  82;    Cent.  Dig.  §§  11,3-11,6. 

23  Southern  Life  Ins.  &  Trust  Co.  v.  Cole,  4  Fla.  359.  See  "Frauds,  Stat- 
ute  of,"  Dec.  Dig.  (Key-No.)  §  82;    Cent.  Dig.  §§  11,3-11,6. 

24  Ante.  p.  94. 

20  See  Tiffany,  Sales,  48,  and  cases  cited.  ^e  Ante,  p.    94. 


56)  ACCEPTANCE   AND    RECEIPT  127 


SAME— ACCEPTANCE  AND  RECEIPT 

56.  To  satisfy  this  exception  there  must  be  both 

(a)  Acceptance,  which  in  this  country  means  assent  by  the  buy- 

er that  the  goods  are  to  be  taken  by  him  in  performance 
of  the  contract,  and 

(b)  Receipt,  or  the  taking  of  possession  of  the  goods  by  the  buy- 

er with  the  seller's  consent,  either  by  actual  delivery  or  by 
agreement. 

Acceptance  and  receipt  are  distinct,  and  to  satisfy  this  exception 
both  are  essential.*^  Acceptance  may  precede  receipt, ^^  or  vice 
versa,^'  and  both  may  be  subsequent  to  the  contract  of  sale.^" 
Their  effect  is  to  prove  that  there  is  a  contract,  the  terms  of  which 
may  then  be  proved  by  parol. '^  Acceptance  and  receipt  of  a  part, 
however  small,  is  sufficient.*^ 

Acceptance 

Acceptance,  as  the  meaning  imports,  is  an  assent  by  the  buyer, 
meant  to  be  final,  that  the  goods  are  to  be  taken  by  him  under  and 

27  Smith  V.  Hudson,  6  Best  &  S.  431 ;  Caulkins  v.  Hellman,  47  N.  Y.  449,  7 
Am.  Rep.  461 ;  Cooke  v.  Millard,  65  N.  Y.  352,  367,  22  Am.  Rep.  619 ;  Max- 
well V.  Brown,  39  Me.  98,  63  Am.  Dec.  605 ;  Patterson  &  Holden  v.  Sargeant, 
Osgood  &  Roundy  Co.,  83  Vt.  516,  77  Ati.  338^  138  Am.  St.  Rep.  1102.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Kep-No.)  §§  89,  90;    Cent.  Dig.  §§  165-179. 

2  8  Cusack  V.  Robinson,  1  Best  &  S.  299;  Cross  v.  O'Donnell,  44  N.  Y.  661, 
4  Am.  Rep.  721 ;  Knight  v,  Mann,  118  Mass.  143,  145 ;  Simpson  v.  Krumdick, 
28  Minn.  352,  355,  10  N.  W.  18.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §§  89,  90;   Cent.  Dig.  §§  165-179. 

2  9  Beaumont  v.  Brengeri,  5  C.  B.  301;  Garfield  v.  Paris,  96  U.  S.  557,  563, 
24  L.  Ed.  821 ;  Vincent  v.  Germond,- 11  Johns.  (N.  Y.)  283 ;  Jones  v.  Reynolds, 
120  N.  Y.  213,  24  N.  E.  279;  Townsend  v.  Hargraves,  118  Mass.  325,  332 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  89,  90;  Cent.  Dig.  §§  165- 
179. 

aoGault  v.  Brown,  48  N.  H.  183,  188,  2  Am.  Rep.  210;  McKnight  v.  Dun- 
lop,  5  N.  Y.  537,  55  Am.  Dec.  370 ;  Marsh  v.  Hyde,  3  Gray  (Mass.)  331 ;  Bush 
V.  Holmes,  53  Me.  417 ;  McCarthy  v.  Nash,  14  Minn.  127  (Gil.  95) ;  Gabriel ' 
V.  Kildare  Elevator  Co.,  18  Okl,  318,  90  Pac.  10,  10  L.  R.  A.  (N.  S.)  638,  11 
Ann.  Cas.  517.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  89,  90; 
Cent.  Dig.  §§  165-179. 

81  Tomkinson  v.  Straight,  17  C.  B.  697;  Garfield  v.  Paris,  96  U.  S.  557,  566, 
24  L.  Ed.  821.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §§  89,  90;  Cent. 
Dig.  §§  165-179. 

82  Garfield  v.  Paris,  supra;  Damon  v.  Osbom,  1  Pick.  (Mass.)  476,  11  Am. 
Dec.  229;  Patterson  &  Ilolden  v.  Sargeant,  Osgood  &  Roundy  Co.,  S3  Vt  516, 
77  Atl.  338,  138  Am.  St  Rep.  1102.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §§  89,  90;   Cent.  Dig.  §§  165-179. 


128  STATUTE   OP  FRAUDS  (Ch.  4 

in  performance  of  the  contract.'"  If  the  contract  is  for  sale  of  spe- 
cific goods,  acceptance  necessarily  takes  place  when  the  contract  is 
entered  into.'*  If  the  contract  is  for  sale  of  goods  which  are  not 
specific,  there  can  be  no  acceptance  until  the  seller  has  indicated 
what  goods  he  intends  to  deliver,  and  thereafter  an  acceptance  may 
be  shown  by  the  buyer's  declarations,"^  or  by  any  dealing  with 
them  as  owner.'*  A  mere  examination  of  the  goods,  however,  for 
the  purpose  of  ascertaining  whether  they  comply  with  the  terms  of 
an  express  or  implied  warranty  of  the  contract  of  sale  does  not  con- 
stitute an  acceptance.'^  In  England  a  highly  artificial  construc- 
tion has  in  the  later  cases  been  put  upon  "acceptance,"  and  it  is 
held  that  any  dealing  with  the  goods  which  recognizes  a  pre-exist- 
ing contract  of  sale  is  an  acceptance,'^  but  this  later  construction 
has  never  been  adopted  in  the  United  States. 

Actual  Receipt 

Where  acceptance  is  shown,  a  very  liberal  construction  is  placed 
on  actual  receipt.  Receipt  implies  delivery,  and  must  be  with  the 
seller's  consent,  and  with  the  intention  of  transferring  possession 
to  the  buyer  as  owner.  The  test  is  whether  the  seller  has  parted 
with  his  lien,"  When  the  goods  are  to  be  forwarded  to  the  buy- 
is  Caulkins  v.  Hellman,  47  N.  Y.  449.  7  Am.  Rep.  461 ;  Meehon  v.  Sharp, 
131  Mass.  564,  24  N.  E.  907 ;  Smith  v.  Fisher,  59  Vt.  53,  7  Atl.  816 ;  Garfield 
V.  Paris,  96  U.  S.  567,  24  L.  Ed.  821.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  89;    Cent.  Dig.  §§  165.-178. 

34  Cases  cited  supra,  note  28. 

«5  Caulkins  v.  Hellman,  47  N.  T.  449,  7  Am.  Rep.  461;  Shepherd  v.  Pressey, 
32  N.  H.  49 ;  Schmidt  v.  Thomas,  75  Wis.  529,  44  N.  W.  771 ;  Galvin  v.  Mac- 
Kenzie,  21  Or.  184,  27  Pac.  1039.  It  is  sometimes  said  that  mere  words  are 
not  enough,  but  the  cases  in  which  such  statements  occur  generally  involve 
simply  the  proposition  that  they  are  not  enough  to  constitute  acceptance  and 
receipt  Shindler  v.  Houston,  1  N.  Y.  261,  49  Am.  Dec.  316.  See  Tiffany, 
Sales,  56.  See  "Frauds,  Statute  of,"  Dec.  Dig.  {Key-No.)  §  89;  Gent.  Dig.  §§ 
,165-173. 

3  6  Chaplin  v.  Rogers,  1  East  195;  Phillips  v.  Ocmulgee  Mills,  55  Ga.  633; 
Bacon  v.  Eccles,  43  Wis.  227,  238;  Sullivan  v.  Sullivan,  70  Mich.  583,  38 
N.  W.  472;  Patterson  &  Holden  v.  Sargeant,  Osgood  &  Roundy  Co.,  S3  Vt 
516,  77  Atl.  338,  138  Am.  St  Rep.  1102.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  89;    Cent.  Dig.  §§  165-173. 

3  7  KEMENSKY  v,  CHAPIN,  193  Mass.  500,  79  N.  E.  781,  9  Ann.  Cas.  1168, 
Throckmorton  Cas.  Contracts,  97.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  89;   Cent.  Dig.  §§  165-173. 

38  Page  V.  Morgan,  15  Q.  B.  Div.  228;  Taylor  v.  Smith  [1893]  2  Q.  B.  65. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Keij-No.)  §  89;    Ceiit.  Dig.  §§  165-173. 

3  9  Phillips  V.  Bristolli,  2  Barn.  &  C.  511;  Safford  v.  McDonough,  120  Mass. 
290;  Marsh  v.  Rouse,  44  N.  Y.  643;  Hinchman  v,  Lincoln,  124  U,  S.  38,  8 
Sup.  Ct  369,  31  L.  Ed.  337.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  { 
90;   Cent.  Dig.  §§  162-179. 


§    56)  ACCEPTANCE    AND    RECEIPT  129 

er,  if  they  are  carried  by  the  seller's  servant  or  ag^ent,  there  is  no 
transfer  of  possession  while  they  remain  in  his  hands ;  *"  but  if  they 
are  forwarded  by  a  carrier  designated  by  the  buyer,  an  actual  re- 
ceipt takes  place  when  they  are  delivered  to  him  for  carriage;*^ 
and  if  they  are  forwarded  by  common  carrier,  he,  in  the  absence 
of  special  agreement,  is  the  agent  of  the  buyer  and  the  result  is  the 
same.*-  The  receipt  of  the  goods  by  the  carrier  in  such  cases,  on 
the  other  hand,  is  not  an  acceptance,  such  an  agent  having  author- 
ity only  to  receive,  and  not  to  accept.*^ 

The  possession  of  the  goods  may  be  transferred,  and  an  actual 
receipt  take  place  by  agreement,  without  physical  delivery.  An 
actual  receipt  takes  place  by  agreement:  (1)  When  the  goods  are 
in  the  actual  possession  of  the  seller,  if  he  becomes  bailee  of  the 
goods  for  the  buyer;**  (2)  when  the  goods  are  in  the  custody  of 
the  buyer,  as  bailee  of  the  seller,  if  with  the  consent  of  the  seller 
he  ceases  to  hold  as  bailee,  and  holds  them  as  owner;  **  (3)  when 
the  goods  are  in  the  custody  of  a  third  person  as  bailee  of  the  seller, 
if  such  third  person,  with  the  consent  of  the  seller  and  the  buyer, 
becomes  bailee  of  the  buyer  ;*^    and  (4)  when  the  goods  are  not 

■toAgnew  v.  Dumas,  64  Vt  147,  23  Atl.  G34 ;  Grey  v.  Gary,  9  Daly  (N.  Y.) 
363.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Eey-yo.)  §  89;  Cent.  Dig.  §§  165- 
173. 

41  Bullock  V.  Tschergi  (C.  C.)  4  McCrary,  184,  13  Fed.  345;  Cross  v.  O'Don- 
nell,  44  N.  T.  661,  4  Am.  Rep.  721.  See  cases  infra,  note  4.1.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  90;    Cent.  Dig.  §§  162-119. 

4  2  Wait  V.  Baker,  2  Ex.  1;  Wilcox  Silver  Plate  Co.  v.  Green,  72  N.  Y,  17; 
Sarbecl5,er  v.  State,  65  Wis.  171,  26  N.  W.  541,  56  Am.  Rep.  624.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Keij-No.)  §  90;    Cent.  Dig.  §§  162-179. 

4  3  KEMENSKY  v.  CHAPIN,  193  Mass.  500,  79  N.  E.  7S1,  9  Ann.  Cas.  1168, 
Throckmorton  Cas.  Contracts,  97 ;  Hanson  v.  Armitage,  5  Barn,  &  Aid.  557 ; 
Hunt  V.  Hecht,  8  Ex.  814;  Allard  v.  Greasert,  61  N.  Y.  1,  5;  Fontaine  v 
Bush,  40  Minn.  141,  41  N.  W.  465,  12  Am.  St.  Rep.  722.  See  "Frauds,  Stat- 
ute of;"  Dec.  Dig.  (Key-No.)  §  90;    Cent.  Dig.  §§  162-179. 

44  Elmore  v.  Stone,  1  Taunt  458 ;  Beaumont  v.  Brengeri,  5  C.  B.  301 ; 
Green  v.  Merriam,  28  Vt  801 ;  Rodgers  v.  Jones,  129  Mass.  420 ;  Webster  v. 
Anderson,  42  Mich.  554,  4  N.  W.  2SS,  36  Am.  Rep.  452.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  90;    Cent.  Dig.  §§  162-179. 

45  Edan  v.  Dudfield,  1  Q.  B.  306;  Llllywhite  v.  Devereux,  15  Mees.  &  W. 
283 ;  Snider  v.  Thrall,  56  Wis.  674,  14  N.  W.  814 ;  Godkin  v.  Weber,  154  Mich. 
207,  114  N.  W.  924,  117  N.  W.  628,  20  L.  R.  A.  (N.  S.)  498. 

But  the  mere  fact  that  the  goods  are  in  the  possession  of  the  purchaser 
at  the  time  of  the  sale  does  not  of  itself  constitute  such  a  receipt  and  ac- 
ceptance as  will  satisfy  the  statute,  unlnss  it  is  so  agreed  by  the  parties,  or 
the  sale  Is  followed  by  acts  of  ownership  on  the  part  of  the  purchaser.  J.  H. 
Silkman  Lumber  Co.  v.  Hunholz,  132  Wis.  610,  112  N.  W.  1081,  11  L.  R.  A. 
(X.  S.)  1186  and  note,  122  Am.  St  Rep.  1008,  13  Ann.  Cas.  713.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  90;    Cent.  Dig.  §§  162-179. 

*«  Ben  tall  v.  Burn,  B.  &  C.  423;  Farina  v.  Home,  16  Mees.  &  W.  119; 
Clakk  Cont.(3d  Ed.)— 9 


130  STATUTE   OF   FRAUDS  (Ch.  4 

in  the  custody  of  any  person,  as  timber  at  a  public  wharf,  or  logs 
floating  in  a  river,  and  the  buyer  and  the  seller  agree  that  the  pos- 
session is  transferred.*^ 


SAME— EARNEST  AND  PART  PAYMENT 

57.  EARNEST.     Earnest  is  something  of  value  given  and  received 

to  mark  the  final  assent  of  the  parties  to  the  bargain, 

58.  PART  PAYMENT.     Part  payment  may  be  made  at  or  (unless 

the  statute  otherwise  requires)  subsequently  to  the  time  of 
the  contract,  either  in  money  or  anything  of  value. 

Earnest  is  money  or  some  gift  or  token  delivered  to  mark  the  as- 
sent to  the  bargain.**  The  practice  of  giving  earnest  was  former- 
ly prevalent  in  England,  and,  as  the  term  was  originally  used,  it 
was  regarded  as  distinct  from  part  payment.*®  Now,  however,  the 
custom  of  giving  something  aside  from  a  part  of  the  purchase  mon- 
ey "to  bind  the  bargain"  has  fallen  into  disuse,  and  the  word 
"earnest"  is  commonly  interpreted  as  synonymous  with  part  pay- 
ment.^" 

Part  payment  may  be  subsequent  to  the  contract,"^  unless,  as  in 
some  states,  the  statute  provides  that  it  must  be  given  at  the  time 
of  the  contract.*^     It  must  be  accepted.''*     It  need  not  be  money, 

Townsend  v.  Hargraves,  118  Mass.  325,  332;  Bassett  v.  Camp.  54  Vt.  232. 
See  "Frauds,  Statute  of;'  Dec.  Dig.  iKen-^'o.)  §  90;    Cent.  Dig.  §§  162-179. 

47Tansley  v.  Turner.  2  Bing.  N.  C.  151;  Cooper  v.  Bill,  3  H.  &  C.  722; 
Leonard  v.  Davis,  1  Black,  476,  17  L.  Ed.  222;  Boynton  v.  Veazie,  24  Me. 
286;  Kingsley  v.  White,  57  Vt.  565;  Brewster  v.  Leith,  1  Minn.  56  (Gil.  40). 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  90;   Cent.  Dig.  §§  162-179. 

48  Brae.  1,  2,  c.  27. 

4  9  Benj.  Sales  (6th  Am.  Ed.)  §  189;  Howe  v.  Smith,  27  Ch.  D.  89,  101.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Keg-No.)  §  94;    Cent.  Dig.  §  182. 

5  0  Howe  r.  Hayward,  108  Mass.  54,  11  Am.  Rep.  306;  Groomer  v.  McMil- 
lan, 143  Mo.  App.  612,  128  S.  W.  2S5.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  9//;   Cent.  Dig.  §  182. 

51  Walker  v.  Nussey,  16  Mees.  &  W.  302;  Thompson  v.  Alger,  12  Mete. 
(Mass.)  428,  435;  Marsh  v.  Hyde,  3  Gray  (Mass.)  331.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  95;    Cent.  Dig.  §§  1S3-1S5. 

62  Hunter  v.  Wetsell,  57  N.  Y.  375,  15  Am.  Rep.  508;  Id.,  84  N.  Y.  549,  .38 
Am.  Rep.  544;  Jackson  v.  Tupper,  101  N.  Y.  515,  5  N.  E.  65;  Kerkhof  v. 
Paper  Co.,  68  Wis.  674,  32  N.  W.  766;  Gabriel  v.  Kildare  Elevator  Co.,  18 
Okl.  318,  90  Pac.  10.  10  L.  R.  A.  (N.  S.)  638,  11  Ann.  Cas.  517;  Franklin  v. 
Matoa  Gold  Min,  Co.,  158  Fed.  941,  86  C.  C.  A.  145,  16  L.  R.  A.  (N.  S.)  381,  14 
Ann.  Cas.  302  (Colorado  Statute).  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key- 
No.)  §  95;   Cent.  Dig.  §§  183-185. 

53  Edgerton  v.  Hodge,  41  Vt.  676.  See  "Frauds,  Statute  of"  Dec.  Dig. 
(Key-No.)  §  95;    Cent.  Dig.  §§  18S-185. 


§    59)  FOKM    EEQUIRED  131 

but  may  be  anything^  of  value,  which  by  mutual  agreement  is  given 
and  accepted  on  account  or  in  part  satisfaction  of  the  price. ^*  It 
may,  for  example,  be  in  the  form  of  a  credit  on  indebtedness  of  the 
seller.^*  But  whatever  is  relied  upon  to  constitute  payment  must 
be  accepted  as  absolute  payment,  and  the  delivery  of  a  check  does 
not  constitute  payment  unless  it  is  agreed  by  the  parties  that  it  is 
to  be  accepted  as  absolute,  and  not  merely  as  conditional  pay- 
ment.'* 


SAME— FORM  REQUIRED 

59.  The  rules  as  to  the  form  required  by  section  17  are  the  same 
as  in  case  of  section  4,  except  that  the  consideration  of  the 
promise  of  the  party  to  be  charged  need  not  appear. 

The  note  or  memorandum  is  sufficient  if  it  comply  with  the  rules 
already  stated  with  reference  to  the  form  required  by  section  4. 
It  is  not  necessary,  however,  that  the  consideration  of  the  promise 
of  the  party  to  be  charged  be  stated ;  in  other  words,  if  the  memo- 
randum contains  his  promise,  it  need  make  no  reference  to  the 
promise  of  the  other  party."  So  if  a  letter  or  memorandum  in  the 
form  of  an  offer  states  the  terms  of  the  proposed  contract,  the  ac- 
ceptance need  not  repeat  the  terms,"  and  indeed  may  even  be  made 
orally.'*     But  the  price  is  a  material  part  of  the  bargain,  and  must 

8*  White  V.  Drew,  56  How.  Prac.  (N.  Y.)  53;  Weir  v.  Iludnut,  115  Ind. 
525,  18  N.  E.  24.  Surrender  of  seller's  note,  Sharp  v.  Carroll,  GO  Wis.  62,  27 
N.  W.  832;  transfer  of  bill  or  note,  Griffiths  v.  Owen,  13  Mees.  &  W.  58; 
under  statute  requiring  payment  at  time,  delivery  of  check.  Hunter  v.  Wet- 
sell,  84  N.  Y.  549,  38  Am.  Rep.  544.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  95;   Cent.  Dig.  §§  183-1S5. 

6  6  Johnson  v<  Tabor,  101  Miss.  78,  57  South.  365.  See  "Frauds,  Statute 
of,"  Dec.  Dig.  (Key-No.)  §  95;    Cent.  Dig.  §§  183-185. 

ssGroomer  v.  McMillan,  143  Mo.  App.  612,  128  S.  W.  285.  See  "Frauds, 
Statute  of,"  Dec.  Dig.  (Key-No.)  §  95;    Cent.  Dig.  §§  183-185. 

57  Kdgerton  v.  Mathews,  0  East,  307;  Sari  v.  Bourdillon,  1  C.  B.  N.  S.  188; 
Smith  V.  Ide,  3  Vt.  290;  Williams  v.  Robinson,  73  Mc.  1S6,  40  Am.  Rer).  3.".2. 
See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  §  103;    Cent.  Dig.  §§  19.1-208. 

68  Jennings  v.  Shertz,  45  Ind.  App.  120,  88  N.  E.  729.  See  "Frauds,  Stat- 
ute of,"  Dec.  Dig.  (Key-No.)  §§  108,  112;    Cent.  Dig.  §§  21',-221,  238. 

eoRouss  V.  Picksley,  L.  R.  1  Ex.  342;  Sanborn  v.  Flagler,  9  Allen  (Mass.) 
474;  Justice  v.  Lang,  42  N.  Y.  493,  1  Am.  Rep.  576;  Gradle  v.  Warner,  140 
111.  123,  29  N.  E.  1118;  Kessler  v.  Smith,  42  Minn.  494,  44  N.  W.  794.  See 
"Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  {  103;    Cent.  Dig.  §§  192-208. 


132  STATUTE   OF  FRAUDS  (Ch.  4 

be  stated,"  though  if  it  be  not  agreed  upon,  but  is  implied,  a  mem- 
orandum which  states  no  price  is  sufficient.'* 


SAME— EFFECT  OF  NONCOMPLIANCE 

60.  As  in  case  of  section  4,  it  is  generally  held  that  failure  to  com- 
ply with  the  provisions  of  section  17  does  not  render  the 
contract  void,  but  merely  prevents  its  enforcement. 

This  section  declares  that,  if  there  be  no  acceptance  and  receipt, 
no  earnest  or  part  payment,  and  no  note  or  memorandum,  the  con- 
tract shall  not  "be  allowed  to  be  good,"  thus  differing  from  sec- 
tion 4,  which  merely  declares  that  no  action  shall  be  brought.  In 
England  it  seems  not  to  have  been  directly  decided  whether  these 
words  mean  that  the  contract  shall  be  utterly  void,  or  merely  in- 
capable of  being  sued  upon,  as  in  case  of  contracts  under  section 
4;  and  the  dicta  of  the  judges  are  conflicting.  The  latter  position 
is  sustained  by  the  weight  of  opinion.'^  In  Massachusetts,  where 
the  statute  provided  that  no  such  contract  should  be  "good  or  val- 
id," it  has  been  held  that  the  difference  in  the  wording  of  the  two 
sections  was  immaterial,  and  that  failure  of  a  contract  to  comply 
with  the  requirements  of  section  17  does  not  go  to  its  existence, 
but  merely  renders  it  unenforceable  by  suit,  as  under  the  fourth 
section."  In  Missouri,  however,  it  has  been  held  that  section  17 
goes  to  the  very  existence  of  the  contract.'*  In  some  states  the 
statute  declares  that  the  contract  shall  be  "void." 

«o  KEMENSKY  v.  CHAPIN,  193  Mass.  500,  79  N.  E.  781,  9  Ann.  Cas.  1168, 
Throckmorton  Cas.  Contracts,  97;  Elmore  v.  Kingscote,  5  B.  &  C.  583;  Ash- 
croft  V.  Butterworth,  136  Mass.  511 ;  Stone  v.  Browning,  68  N.  Y.  598 ;  Han- 
son V.  Marsh,  40  Minn.  1,  40  N.  W.  841 ;  Glasgow  Milling  Co.  v.  Burgher.  122 
Mo.  App.  14,  97  S.  W.  950.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-^^o.)  i 
112;    Cent.  Dig.  §  238. 

81  Hoadley  v.  McLaine.  10  Bing.  482 ;  Ashcroft  v.  Morrison,  4  M.  &  G.  450. 
See  "Frauds,  Statute  of,"  Dec.  Dip.  (Key-No.)  §  112;   Cent.  Dig.  §  2S8. 

« 2  Anson,  Cont.  (4th  Ed.)  67;    Pol.  Cont.  605. 

«3  Townsend  v.  Hargraves,  118  Mass.  325;  Wainer  v.  Insurance  Co.,  153 
Mass.  335,  26  N.  E.  877,  11  L.  R.  A.  598.  See,  also.  Bird  v.  Munroe,  66  Me. 
337,  22  Am.  Rep.  571;  ante,  p.  114.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  125;   Cent.  Dig.  §§  21 5-211^2- 

«4  Houghtaling  v.  Ball,  20  Mo.  563.  See,  also.  Green  v.  Lewis,  26  U.  C.  Q. 
B.  618.  See  "Frauds,  Statute  of,"  Dec.  Dig.  (Key-No.)  i  125;  CeiU.  Dig.  §| 
275-277%. 


§§    61-62)  CONSIDERATION  133 


CHAPTER  V 
CONSIDERATION 

61, 62.  Consideration  Defined. 

63, 64.  Necessity  for  Consideration,  and  Presumption. 

65,  G6.  Adequacy  of  Consideration. 

67.  Sufficiency  or  Reality  of  Consideration. 
68-70.  Mutual  Promises — Mutuality. 

71-73.  Forbearance  to  Exercise  a  Right. 

74-76.  Doing  What  One  is  Bound  to  Do. 

77,  78.  Impossible  and  Vague  Promises. 

79.  Legality  of  Consideration. 

SO.  Consideration  in  Respect  of  Time — Past  Consideration. 


CONSIDERATION  DEFINED 

61.  Consideration  is  that  which  moves  from  the  promisee,  or  to  the 

promisor,  at  the  express  or  implied  request  of  the  latter, 
in  return  for  his  promise, 

62.  As  the  term  is  used  in  the  law  of  contract,  it  means  a  "valuable" 

consideration;  that  is,  something  having  value  in  the  eye 
of  the  law.  It  may  consist  either  in  "some  right,  interest, 
profit,  or  benefit  accruing  to  one  party,  or  some  forbear- 
.  ance,  detriment,  loss,  or  responsibility  given,  suffered,  or 
undertaken  by  the  other." 

The  law  requires  every  simple  contract  to  be  based  on  what  it 
deems  a  valuable  consideration.  We  shall  take  up  in  turn  the  dif- 
ferent forms  which  consideration  may  assume,  and  explain  at  length 
what  is  deemed  a  consideration.^  At  the  outset,  however,  it  will 
be  well  to  explain  in  a  general  way  what  we  mean  when  we  speak 
of  the  consideration  for  a  promise.  Consideration  means  that 
which  moves  from  the  promisee,  or  to  the  promisor,  at  the  latter's 
request,  in  return  for  his  promise.  Consideration  "is  something 
done,  forborne,  or  suffered,  or  promised  to  be  done,  forborne,  or 
suffered  by  the  .promisee  in  respect  of  the  promise."  ^  If,  for  in- 
stance, one  man,  by  paying  another  a  sum  of  money,  procures  a 
promise  from  the  latter  in  return  to  do  something  for  his  benefit, 
the  money  paid  is  the  consideration  for  the  promise.     Considera- 

1  For  the  history  of  consideration,  the  student  should  read  Anson.  Cont. 
(8th  Ed.)  43;    Poll.  Cont  179;    Holmes,  Com.  Law,  253-271,  284-287. 

2  Anson,  Cont  (8th  Ed.)  74. 


134  CONSIDERATION  (Ch.  5 

tion,  however,  need  not  be  the  payment  of  money.  As  usually  de- 
fined, it  may  consist  "in  some  right,  interest,  profit,  or  benefit  ac- 
cruing- to  one  party,  or  some  forbearance,  detriment,  loss,  or  re- 
sponsibility given,  suffered,  or  undertaken  by  the  other  ;"^  provid- 
ed, however,  the  benefit  conferred  or  detriment  suffered  is  deemed 
of  value  in  the  eye  of  the  law.*  Strictly  speaking,  however,  the  ac- 
crual of  a  right  or  benefit  to  the  promisor  is  not  necessary  to  estab- 
lish a  consideration,  and  the  one  essential  test  in  all  cases  is  that  of 
forbearance,  detriment,  or  responsibility  suffered  or  undertaken  by 
the  promisee.'' 

If  a  person  does  work  for  another  on  the  latter's  express  or  im- 
plied promise  to  pay  for  it,  or  gives  another  permission'to  use  his 
property  in  return  for  a  promise,  or  gives  up  his  right  to  sue  an- 
other, on  the  latter's  promise  to  pay  money  or  do  some  other  act, 
there  is  in  each  case  either  a  benefit  accruing  to  the  promisor,  or  a 
detriment  suffered  by  the  promisee,  or  both;  and  this  is  the  consid- 
eration for  the  promise.  So,  also,  if  a  person  promises  another  to 
do  something  on  the  latter's  promising  him  to  do  something,  as 
where  one  man  promises  another  to  sell  him  goods,  and  the  prom- 
isee promises  to  buy  them,  and  pay  for  them,  a  right  is  conferred 
by  each  to  the  benefit  of  the  other's  promise,  and  a  responsibility  is 
undertaken  by  each.  The  promise  of  each  is  the  consideration  for 
the  promise  of  the  other.' 

The   fact   that   the   benefit  conferred    or   detriment   suffered    is 

8  Currie  v.  Misa,  L.  R.  10  Exch.  162.  See,  also,  Baiubiidge  v.  Firmstone,  8 
Adol.  &  E.  743 ;  Handrahan  v.  O'Regan,  45  Iowa,  298 ;  Devecmon  v.  Shaw,  G9 
Md.  199,  14  Atl.  464,  9  Am.  St.  Rep.  422;  HAMER  v.  SIDWAY,  124  N.  Y. 
538,  27  N.  E.  256,  12  L.  R.  A.  463,  21  Am.  St  Rep.  693,  Throckmorton  Cas.  Con- 
tracts, 100;  Byrne  v.  Cummings,  41  Miss.  192;  Day  v.  Gardner,  42  N.  J.  Eq. 
199,  7  Atl.  305;  Wolford  v.  Powers,  85  Ind.  294,  44  Am.  Rep.  16;  Sanders 
V.  Carter,  91  Ga.  450,  17  S.  E.  845.;  Dorwin  v.  Smith,  35  Vt.  69;  Train  v.  Gold. 
5  Pick.  (Mass.)  380;  Emerson  v.  Slater,  22  How.  43,  16  L.  Ed.  360;  Taylor 
V,  Williams,  120  Ind.  414,  22  N.  E.  118;  Marshalltown  Stone  Co,  v.  Manu- 
facturing Co.,  114  Iowa,  574,  87  N,  W,  496;  Gunther  v.  Gunther,  181  Mass. 
217,  63  N.  E.  402;    Presbyterian  Board  of  Foreign  Missions  v.  Smith,  209  Pa. 

361,  58  Atl.  689.     And  see  the  old  cases  of  Traver  v.  (1667)  1  Sid.  57; 

Paynter  v.  Chamberlyn  (1639)  1  Rolle,  Abr.  22;  Hawes  v.  Smith  (1675)  2  Lev. 
122.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  50-52;   Cent.  Dig.  §§  222-22Jt. 

*  Post,  p.  140.  * 

0  Henry  v.  Dussell,  71  Neb.  691,  99  N.  W.  484.  And  see  Pollock,  Cent.  166 ; 
HAMER  V.  SIDWAY,  124  N.  Y.  538,  27  N.  E.  256,  12  D.  R.  A.  463,  21  Am.  St. 
Rep.  693,  Throckmorton  Cas.  Contracts,  100.  iSfee  ''Contracts"  Dec.  Dig.  {Key- 
No.)  §§  50-52;   Cent.  Dig.  §§  222-22 J,. 

6  Funk  V,  Hough,  29  111.  145 ;  Earle  v.  Angell,  157  Mass.  294,  32  N.  E.  ]  64. 
And  see  post,  p.  145.  See  "Contracts"  Dec.  Dig.  (Key-No.)  §  56;  Cent.  Dig.  §§ 
SU-35S. 


§§    61-62)  CONSIDERATION    DEFINED  135 

slight  does  not  render  it  any  the  less  a  valuable  consideration.'' 
The  naming  of  a  child  after  a  person  will  support  his  promise  to 
pay  a  large  sum  of  money.* 

Consideration  Distinguished  from  Motive 

"Motive  is  not  the  same  thing  with  consideration.  Considera- 
tion means  something  which  is  of  value  in  the  eye  of  the  law,  mov- 
ing from"  the  promisee.®  Confusion  between  motive  and  consider- 
ation has,  however,  sometimes  arisen,  and  has  taken  two  forms: 
(1)  The  distinction  which  once  existed  between  "good"  and  "valu- 
able" consideration;  and  (2)  the  view  which  once  maintained  that 
a  moral  obligation  was  sufficient  to  support  a  promise. 

Same — Good  Consideration 

Natural  affection  for  a  near  relative,  or,  as  it  is  generally  said, 
the  consideration  of  blood,  or  natural  love  and  affection,  is  said  to 
be  a  "good,"  but  not  a  "valuable,"  consideration.^"  In  the  law  of 
contract  the  consideration  must  be  "valuable."  In  some  early 
English  cases  it  was  attempted  to  ingraft  the  doctrine  of  good  con- 
sideration, which  had  been  applied  in  cases  of  covenants  to  stand 
seised,  upon  the  law  of  contract,  but  it  was  not  allowed.  The  mere 
existence  of  natural  affection  as  a  motive  for  a  promise  has  prob- 
ably never  been  held  to  amount  to  a  valuable  consideration,  so  as 
to  support  an  executory  contract.^^ 

7  State  V.  Baker,  8  Md.  44.  See  "Contracts,''  Dec.  Dig.  (Key-No.)  §  54;  Gent. 
Dig.  §  242. 

8  Wolford  V.  Powers,  85  Ind.  294,  44  Am,  Rep.  16;  Diffenderfer  v.  Scott,  5 
Ind.  App.  243,  32  N.  E.  87;  Daily  v.  Minnick,  117  Iowa,  563,  91  N.  W.  913, 
60  L.  R.  A.  840.    See  "Contracts,"  Dec.  Dig.  (Keij-No.)  §  54;   Cent.  Dig.  ^251. 

9  Thomas  v.  Thomas,  2  Q.  B.  851.  See,  also,  Philpot  v.  Gruninger,  14  Wall. 
570,  20  L.  Ed.  743.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  50;  Cent.  Dig.  § 
222. 

10  Chit.  Cont.  27.  "A  good  consideration  is  such  as  that  of  blood,  or  of 
natural  love  and  affection,  when  a  man  grants  an  estate  to  a  near  relation; 
being  founded  on  motives  of  generosity,  prudence,  and  natural  duty.  A 
valuable  consideration  is  such  as  money,  marriage,  or  the  like,  which  the  law 
esteems  an  equivalent  given  for  the  grant,  and  is  therefore  founded  in  mo- 
tives of  justice.  Deeds  made  upon  good  consideration  only  are  considered  as 
merely  voluntary,  and  are  frequently  set  aside  in  favor  of  creditors  and  bona 
fide  purchasers."    2  Bl.  Comm.  297. 

11  Bret  V.  J.  S.  and  \Vife,  Cro.  Eliz.  755;  Fink  v.  Cox,  18  Johns.  (N.  T.) 
145,  9  Am.  Dec.  191 ;  Priester  v.  Priester,  Rich.  Eq.  Cas.  (S.  C.)  26,  18  Am. 
Dec.  191;  Kirkpatrick  v.  Taylor,  43  111.  207;  Smith  v.  Kittridge,  21  Vt.  238; 
Phillips  V.  Frye,  14  Allen  (Mass.)  36;  Pennington  v.  Gittiugs,  2  Gill  &  J.  (Md.) 
208 ;  Dugan  v.  Gittings,  3  Gill  (Md.)  138,  43  Am.  Dec.  300 ;  Whitaker  v.  Whit- 
aker,  52  N.  Y,  368,  11  Am.  Rep.  711 ;  Cotton  v.  Graham,  84  Ky.  672,  2  S.  W. 
647;  Hadley  v.  Reed,  58  Hun,  60S,  12  N.  Y.  Supp.  163;  Williams  v.  Forbes. 
114  111.  167,  28  N.  E.  463;  Wilbur  v.  Warren,  104  N.  Y.  196,  10  N.  E.  263.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  77;   Cent.  Dig.  §§  286-290. 


136  CONSIDERATION  (Ch.  5 

It  was  formerly  held  that  if  a  person  for  whose  benefit  a  binding 
promise  was  made  was  nearly  related  to  the  promisee,  the  rela- 
tionship and  the  fact  that  the  contract  was  prompted  by  natural  af- 
fection would  give  a  right  of  action  to  the  beneficiary.  This  excep- 
tion to  the  rule  that  a  contract  cannot  confer  rights  upon  a  person 
who  is  not  a  party  to  it  is  no  longer  generally  recognized.^^'  The 
question  of  the  right  of  a  third  person  who  did  not  furnish  the  con- 
sideration to  sue  upon  a  promise  made  for  his  benefit  will  be  con- 
sidered in  discussing  the  operation  of  contract/^ 

Same — Moral  Obligation 

There  are  some  cases  to  the  effect  that  a  mere  moral  obligation  is 
sufificient  consideration  to  support  a  promise/*  but  it  is  now  well 
settled  to  the  contrary.^'  A  man  may  believe  himself  to  be  under 
a  moral  obligation,  either  because  he  has  received  actual  benefits  in 
the  past,  or  from  motives  of  piety,  delicacy,  or  friendship.  Now,  a 
past  consideration,  as  will  be  seen,^«  is  in  truth  no  consideration  at 
all,  for  the  promisor  does  not  receive  a  benefit,  nor  the  promisee 
suffer  a  detriment,  in  return  for  the  promise.  There  are  certain 
exceptions  to  this  statement,  which  will  be  noticed  in  treating  of 
past  consideration,  but  it  will  be  seen  that  the  validity  of  the  prom- 
ise in  those  cases  does  not  properly  rest  on  the  basis  of  moral  obli- 
gation, though  some  courts  put  it  upon  that  ground.  The  insuffi- 
ciency of  past  benefits  to  support  a  promise  on  the  ground  of  moral 
obligation  was  settled  in  England  in  a  case  in  which  it  was  said: 
"The  doctrine  would  annihilate  the  necessity  for  any  consideration 

18  Post,  p.  444.  1'  Post,  pp.  442-452. 

14  Hawkes  v.  Saunders,  Cowp.  289;  Lee  v.  Muggeridge,  5  Taunt.  36;  Clark 
T.  Herring,  5  Binn.  (Pa.)  3.5 ;  Glass  v.  Beach,  5  Vt.  173 ;  State  v.  Reigart,  1 
Gill  (Md.)  1,  39  Am.  Dec.  G28;  Drury  v.  Briscoe,  42  Md.  1G2;  Musser  v.  Fer- 
guson Tp.,  55  Pa.  475;  In  re  Sutch's  Estate,  201  Pa.  30.5,  50  Atl.  943.  And 
868  Brown  v.  Latham,  92  Ga.  280,  18  S.  E.  421 ;  Lawrence  v.  Oglesby,  178  111. 
122,  52  N.  E.  945.  See  post,  p.  175.  -See  "Contracts,"  Dec.  Dig.  {Key-No.)  § 
76;   Cent.  Dig.  §§  357-S81. 

IB  Eastwood  V.  Kenyon,  11  Adol.  &  E.  438;  Mills  v.  Wyman,  3  Pick.  (Mass.) 
207 ;  Beaumont  v.  Reeve,  8  Q.  B.  483 ;  Ehle  v.  Judson,  24  Wend.  (N.  Y.)  97 ; 
Cook  V.  Bradley,  7  Conn.  57,  18  Am.  Dec.  79;  Valentine  v.  Foster,  1  Mete. 
(Mass.)  520,  35  Am.  Dec.  377 ;  Updike  v.  Titus,  13  N.  J.  Eq.  151 ;  Faruham  v. 
O'Brien,  22  Me.  475 ;  Shepard  v.  Rhodes,  7  R.  I.  470,  84  Am.  Dec.  573 ;  Gay 
T.  Botts,  13  Bush  (Ky.)  299 ;  Cobb  v.  Cowdery,  40  -Vt.  25,  94  Am.  Dec.  370 ; 
Osier  v.  Hobbs,  33  Ark.  215;  McElven  v.  Sloan,  56  Ga.  208;  Trimble  v.  Rudy, 
60  S.  W.  650,  22  Ky.  Law  Rep.  1406,  53  L.  R.  A.  353,  and  note.  A  promise  by 
a  husband  to  his  wife  on  her  deathbed  that  their  son  should  have  certain 
property  is  not  a  valuable  consideration  for  a  conveyance  from  the  father 
to  the  son.  Peek  v.  Peek,  77  Cal.  106,  19  Pac.  227,  1  L.  R.  A.  1&5,  11  Am.  St. 
Rep.  244.  See  post,  p.  175,  note  88.  See  "Contracts,"  Dec.  Dig.  {Key-Is  o.)  % 
16;   Cent.  Dig.  %l  357-SSl. 

16  Post,  p.  170. 


§§    63-64)       NECESSITY  FOB  CONSIDERATION,  AND  PRESUMPTION  137 

at  all,  inasmuch  as  the  mere  fact  of  giving  a  promise  creates  a  moral 
obligation  to  perform  it."  ^^ 

If  the  actual  receipt  of  a  benefit  in  the  past  does  not  constitute 
consideration  for  a  subsequent  promise,  still  less  will  such  duties 
of  honor,  conscience,  or  friendship  as  a  man  may  conceive  to  be 
incumbent  on  him.  A  man  may  be  bound  in  honor  to  pay  money 
lost  in  a  wager,  but,  inasmuch  as  the  law  has  declared  wagers  to 
be  void,  a  promise  to  pay  such  a  debt  would  be  unenforceable  for 
want  of  a  consideration.^*'  In  like  manner,  a  pious  wish  on  the 
part  of  executors  to  carry  out  the  intentions  of  the  testator  is  no 
consideration  for  promises  made  by  them.^' 


NECESSITY  FOR  CONSIDERATION,  AND  PRESUMPTION 

63.  NECESSITY — A  valuable  consideration  is  essential  to  the  va- 

lidity of  every  simple  contract. 

EXCEPTION — Want  of  consideration  does  not  avoid  a  nego- 
tiable instrument  in  the  hands  of  a  bona  fide  purchaser  for 
value. 

64.  PRESUMPTION— Negotiable    instruments    are    by    the    law 

merchant  deemed  prima  facie  to  have  been  issued  for  a 
valuable  consideration;  and  by  statute  in  some  jurisdic- 
tions the  same  is  true  of  all  other  simple  contracts  in  writ- 
ing, and  of  contracts  under  seal  in  those  jurisdictions  where 
the  common-law  effect  of  a  seal  has  been  abolished. 

Consideration  is  the  universal  requisite  of  all  contracts  not  un- 
der seal,  except  the  so-called  "contracts  of  record,"  which,  like  con- 
tracts under  seal,   derive  their  validity  from   their  form   alone.^" 

IT  Eastwood  V.  Kenyon,  11  Adol.  &  E.  438. 

18  Morris  v.  Norton,  75  Fed.  912,  21  C.  C.  A.  553.  See  "Contracts,"  Bee.  Dig. 
(Key-No.)  §  76;  Cent.  Dig.  §§  357-359;  "Oaming,"  Dec.  Dig.  {Key-No )  §  19  • 
Cent.  Dig.  §§  SB-^J,. 

19  Anson,  Cont.  (4th  Ed.)  79;  Thomas  v.  Thomas,  2  Q.  B.  851.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  7^;    Cent.  Dig.  §§  357-381. 

20RANN  V.  HUGHES,  7  Term  R.  34G,  Throckmorton  Cas.  Contracts,  34; 
Cooke  V.  Oxley,  3  Term  R.  6.j3  ;  Burnet  v.  Bisco,  4  Johns.  (N.  Y.)  235 ;  Doeb- 
ler  V.  Waters,  30  Ga.  344;  Lowe  v.  Bryant,  32  Ga.  235;  Oullahan  v.  Baldwin, 
100  Cal.  048,  35  Tac.  310 ;  Branson  v.  Kitchenman,  148  Pa.  541,  24  All.  Gl  ;' 
McLean  v.  McBean,  74  111.  134 ;  Baer  v.  Chri.stian,  83  Ga.  322,  9  S.  E.  790 ; 
Bailey  v.  Walker,  29  Mo.  407;  Hendy  v.  Kier,  59  Cal.  138;  Culver  v.  Banning! 
19  Minn.  303  (Gil.  200) ;  In  re  Janie-s,  78  Hun,  121,  28  N.  Y.  Supp.  992.  See 
''Contracts,"  Dec.  Dig.  (Key-No.)  §  47;   Cent.  Dig.  §§  220,  221,  256-258. 


138  CONSIDERATION  (Ch.  5 

The  rule  applies  to  all  simple  contracts, ^^  including  those  contracts 
which  are  required  to  be  in  writing,  either  by  the  statute  of  frauds, 
or  by  other  statutes,  or  by  the  common  law.  It  was  at  one  time 
doubted  whether  a  promise  not  under  seal  needed  a  consideration 
if  it  was  put  in  writing,^^  but  the  necessity  for  a  consideration  was 
affirmed  and  settled  in  England  in  1778  in  a  suit  against  an  admin- 
istratrix who,  without  consideration,  had  promised  in  writing  to  an- 
swer damages  out  of  her  own  estate.  It  was  contended  that  the 
writing  required  by  the  statute  of  frauds  rendered  consideration 
unnecessary,  but  the  contrary  was  held.  "It  is  undoubtedly  true," 
it  was  said,  "that  every  man  is  by  the  law  of  nature  bound  to  ful- 
fill his  engagements.  It  is  equally  true  that  the  law  of  this  country 
supplies  no  means  nor  affords  any  remedy  to  compel  the  perform- 
ance of  an  agreement  made  without  sufficient  consideration.  Such 
agreement  is  'nudum  pactum  ex  quo  non  oritur  actio;'  and,  what- 
ever may  be  the  sense  of  this  maxim  in  the  civil  law,  it  is  in  the 
last  sense. only  that  it  is  to  be  understood  in  our  law.  *  *  *  All 
contracts  are,  by  the  law  of  England,  distinguished  into  agreements 
by  specialty,  and  agreements  by  parol;  nor  is  there  any  such  third 
class,  as  some  of  the  counsel  have  endeavored  to  maintain,  as  con- 
tracts in  writing.  If  they  be  merely  written,  and  not  specialties, 
they  are  parol,  and  a  consideration  must  be  proved."  *' 

Negotiable  Instruments 

Bills  of  exchange,  promissory  notes,  and  other  negotiable  instru- 
ments are  to  some  extent  an  exception  to  this  rule. 

As  between  the  immediate  parties  to  the  instrument  considera- 

21  Cooley  V.  Moss,  123  Ga.  707,  51  S.  E.  625,  holding  that  a  written  contract 
signed  by  the  parties  is  not  binding  on  a  party  as  to  whom  it  is  without  con- 
sideration. The  guaranty,  of  another's  debt  must  be  supported  by  a  consid- 
eration. In  these  contracts  there  are  two  considerations — a  consideration  for 
the  original  contract,  and  a  consideration  for  the  guaranty.  See  Briggs  v. 
Latham,  36  Kan.  205,  13  Pac.  129.  If,  however,  as  we  have  seen,  a  note,  for 
instance,  is  guarantied  by  a  third  person  before  its  delivery  to  the  payee, 
the  consideration  from  the  payee  to  the  malcer  is  sufficient  to  support  the  guar- 
anty as  well  as  the  note.  Winans  v.  Manufacturing  Co.,  48  Kan.  777,  30  Pac. 
163 ;  Heyman  v.  Dooley,  77  Md.  162,  26  Atl.  117,  20  L.  R.  A.  257.  See  "Con- 
tracts," Dec.  Dig.  {Key-^o.)  §  47;    Cent.  Dig.  §§  220,  221,  256-25S. 

2  2  Pillans  V.  Van  Mierop  (A.  D.  1765)  3  Burrows,  1663.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  J,! ;   Cent.  Dig.  §§  220,  221,  256-258. 

23  RANN  V.  HUGHES,  7  Term  R.  350,  Throckmorton  Gas.  Contracts,  34. 
See,  also,  Cook  v.  Bradley,  7  Conn.  57,  18  Am.  Dec.  79 ;  In  re  Hess'  Estate, 
150  Pa.  346,  24  Atl.  676;  Brown  v.  Adams,  1  Stew.  (Ala.)  51,  18  Am.  Dec.  36; 
Burnet  v.  Bisco,  4  Johns.  (N.  Y.)  235 ;  Perrine  v.  Cheeseraan,  11  N.  J.  Law, 
174,  19  Am.  Dec.  388;  Train  v.  Gold,  5  Pick.  (Miiss.)  380;  Eddy  v.  Roberts, 
17  111.  505.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  ^7;  Cent.  Dig.  §§  220,  221, 
256-258. 


§§    63-64)       NECESSITY  FOK  CONSIDERATION,  AND  PRESUMPTION  139 

tion  is  necessary.  Consideration,  however,  is  said  to  be  presumed 
— that  is,  the  instrument  itself  is  prima  facie  evidence  of  considera- 
tion; but  the  defendant  may  introduce  evidence  in  rebuttal  of  the 
presumption,  and  if  he  can  show^  that  no  consideration  was  given 
for  his  making  or  indorsement  of  the  instrument  his  promise  fails. ^* 
The  rule  is  the  same  when  the  party  suing  is  a  subsequent  holder, 
unless  he  is  a  purchaser  for  value  before  maturity  without  notice, 
in  which  case  want  of  consideration  is  not  a  defense.^* 

Gratuitous'  Employment 

"The-  promise  of  a  gratuitous  service,  although  not  enforceable 
as  a  promise,  involves  a  liability  to  use  ordinary  care  and  skill 
in  performance" ;  ^®  or,  as  it  is  usually  put,  the  prqmisee  is  not  liable 
for  nonfeasance,  but  is  liable  for  misfeasance,  and  this  is  sometimes 
said  to  be  another  exception  to  the  rule  that  consideration  is  neces- 
sary to  the  validity  of  every  simple  contract.  The  ground  of  this 
liability  is  somewhat  obscure.  Where  a  person  delivers  over  prop- 
erty to  a  bailee  or  agent,  it  is  perhaps  possible  to  find  a  considera- 
tion in  the  detriment  which  the  bailor  or  principal  suffers  in  parting 
with  control.^^  But  in  the  mere  case  of  gratuitous  service  or 
agency,  this  element  of  consideration,  if  such  it  be,  does  not  exist. 
It  is  sometimes  said  that  the  trust  and  confidence  reposed  is  a  suf- 
ficient consideration,^^  but  if  this  were  so  it  would  be  a  sufficient 
consideration  for  the  promise  to  perform,  and  render  the  promisee 
liable  for  nonfeasance.  It  must  be  admitted  that  the  liability  in 
these  cases  arises  independently  of  any  consideration  to  support  the 
undertaking.  Whether  this  liability  is  to  be  regarded  as  an  anom- 
aly in  the  law  of  contract  -'  or  as  arising  independently  of  ^con- 
tract ^°  need  not  be  considered. 

Statutory  Presumption  of  Consideration 

In  some  states,  statutes  have  been  enacted  declaring  that  all  writ- 
ten instruments  shall  be  presumptive  evidence  of  a  consideration, 
rebuttable,  however,  by  showing  that  there  was  in  fact  no  consid- 

2  4  Norton,  Bills  &  N.  (Sd  Ed.)  270.  «8  Id.  27(i. 

2  6  Anson,  Contr.  (Sth  Ed.)  76,  S3.  See,  also,  Wilkinson  v.  Coverdale,  1  Esp. 
75;  Tborue  v.  Deas,  4  Johns.  (N.  Y.)  84;  Walker  v.  Smith,  1  Wash.  C.  C.  152, 
Fed.  Cas.  No.  17,0SG ;  Williams  v.  Higgins,  30  Md.  404 ;  Passano  v.  Acosta,  4 
La.  26,  23  Am.  Dec.  470;  Spencer  v.  TovNies,  IS  Mich.  9;  Ishara  v.  Tost,  141 
N.  Y.  100,  35  N.  E.  1084,  23  L.  R.  A.  90,  38  Am.  St.  Rep.  7GG.  See  "Contracts," 
Dec.  Dig.  (Key-Xo.)  §  61;   Cent.  Dig.  §§  252,  253. 

2  7  Coggs  V.  Bernard,  2  Ld.  R.  909;  Whitehead  t.  Greetham,  2  Ring.  464. 
Bee  "Contracts,"  Dec.  Dig.  {Kcg-No.)  §  62;   Cent.  Dig.  §§  260-272. 

28  Hammond  v.  Hussey,  51  N.  H.  40,  12  Am.  Rep.  41.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  5J,;    Cent.  Dig.  §§  233-255,  291-315. 

2  8  Anson,  Contr.  (Sth  Ed.)  85. 

•  0  "Gratuitous  Undertakings,"  by  Joseph  H.  Beale,  Jr.,  5  Ilarv.  L.  R.  222. 


140  CONSIDERATION  (Ch.  5 

eration,  thereby  putting  all  simple  contracts  in  writing,  to  this  ex- 
tent, on  a  level  with  negotiable  instruments.'^  The  statutory  chang- 
es in  the  law  in  respect  to  instruments  under  seal  have  already 
been  referred  to.'^ 


ADEQUACY  OF  CONSIDERATION 

65.  The  validity  of  the  contract  is  not  dependent  upon  the  adequacy 

of  the  consideration,  provided  it  is  something  of  value  in 
the  eye  of  the  law.'' 

66.  In  equity,  inadequacy  of  consideration,  if  such  as  to  be  evidence 

of  fraud,  is  ground  for  refusing  specific  performance ;  and 
inadequacy  of  consideration  is  regarded  as  corroborative 
evidence  in  suits  for  relief  from  contracts  on  tlie  ground 
of  fraud  and  undue  influence. 

In  General 

At  law  the  benefit  conferred  or  detriment  suffered  by  the  prom- 
isee in  exchange  for  the  promise  need  not  be  equal  to  the  responsi- 
bility assumed  by  the  promisor ;  or,  in  other  words,  the  consideration 
need  not  be  adequate.  Any  real  consideration,  however  small,  will 
support  a  promise.^*  So  long  as  a  man  gets  what  he  has  bargained 
for,  and  it  is  of  some  value  in  the  eye  of  the  law,  the  courts  will  not 
ask  what  its  value  may  be  to  him,  or  whether  its  value  is  in  any 
way  proportionate  to  his  act  or  promise  given  in  return,  for  this 
would  be  "the  law  making  the  bargain  instead  of  leaving  the  par- 
ties to  make  it."  '"  In  a  case  in  the  supreme  court  of  the  United 
States,  Mr.  Justice  Story  said,  in  speaking  of  a  guaranty  of  anoth- 
er's debt,  made  in  consideration  of  one  dollar:  "A  valuable  con- 
sideration, however  small  or  nominal,  if  given  or  stipulated  for  in 

81  There  are  such  statutes  in  California,  Indiana,  Iowa,  Kansas,  Kentucky, 
Missouri,  and  possibly  in  other  states. 
8  2  Ante,  p.  73. 

83  Anson,  Cont   (8th  Ed.)  76. 

84  Presbyterian  Board  of  Foreii^n  Missions  v.  Smith,  209  Pa.  3*51,  .58  Atl. 
689;  Wolford  V.  Powers,  85  Ind.  294,  44  Am.  Rep.  16.  -See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  5S;   Cent.  Dig.  §§  281,  2S2. 

ssPiikington  v.  Scott,  15  Mees.  &  W.  660;  Worth  v.  Case.  42  N.  Y.  362; 
Hubbard  v.  Coolidge,  1  Mete.  (Mass.)  84 ;  Brooks  v.  Ball,  18  Johns.  (N.  Y.)  337 ; 
Nash  V.  Lull,  102  Mass.  60,  3  Am.  Rep.  435 ;  Earl  v.  Peck,  64  N.  Y.  596 ;  Dor- 
win  V.  Smith,  35  Vt.  69 ;  Boggs  v.  Wann  (C.  C.)  58  Fed.  681 ;  Ejre  v.  Potter, 
15  How.  42,  14  L.  Ed.  592 ;  Grandin  v.  Grandin,  49  N.  J.  Law,  508.  9  Atl.  756, 
60  Am.  Rep.  642;  Crum  v.  Sawyer,  132  111.  443,  24  N.  E.  956;  Minneapolis 
Land  Co.  v.  McMillan,  79  Minn.  287,  82  N.  W.  591;  Bigelow  v.  Bigelow.  95 
Me.  17,  49  Atl.  49;  Casserleigh  v.  Wood,  119  Fed.  308,  56  C.  a  A.  212.  See 
^Contracts,"  Dec.  Dig.  {Key-No.)  §  5S;   Cent.  Dig.  §§  2:]1,  232. 


§§    65-66)  ADEQUACY    OF   CONSIDERATION  141 

good  faith,  is,  in  the  absence  of  fraud,  sufficient  to  support  an  ac- 
tion on  any  parol  contract.  *  *  *  A  stipulation  in  considera- 
tion of  one  dollar  is  just  as  efifectual  and  valuable  a  consideration  as 
a  larger  sum  stipulated  for  or  paid."  '® 

Forbearance  by  a  creditor,  for  instance,  to  levy  an  execution  on 
the  debtor's  property,  will  support  a  promise  by  the  debtor  or  by 
a  third  person  to  pay  a  larger  sum  than  could  have  been  recovered 
under  the  execution.  "If,"  said  Lord  Tenterden  in  such  a  case, 
"the  inconvenience  of  an  execution  against  these  goods  at  the  time 
in  question  was  so  great  that  the  defendant  thought  proper  to  bu}^ 
it  off  at  such  an  expense,  I  do  not  see  that  the  consideration  is  in- 
sufficient for  the  promise."  ^^ 

There  may  even  be  a  consideration  without  the  accrual  of  any 
benefit  at  all  to  the  promisor.  If  the  promisee  has  suffered  any 
detriment,  however  slight,  or,  though  he  has  suffered  no  real  detri- 
ment, if  he  has  done  what  he  was  not  otherwise  bound  to  do,  in 
return  for  the  promise,  he  has  given  a  consideration;  and  the  court 
will  not  ask  whether  the  promisor  was  benefited. ^^  Where,  for 
instance,  the  owner  of  boilers  gave  another  permission  to  weigh 
them  on  the  latter's  promise  to  return  them  in  good  condition,  the 
permission  and  advantage  taken  of  it  was  held  a  sufficient  consid- 
eration for  the  promise.  "The  defendant,"  said  the  court,  "had. 
some  reason  for  wishing  to  weigh  the  boilers,  and  he  could  do  so 
only  by  obtaining  permission  from  the  plaintiff,  which  he  did  ob- 
tain by  promising  to  return  them  in  good  condition.  We  need  not 
inquire  what  benefit  he  expected  to  derive.  The  plaintiff  might 
have  given  or  refused  leave."  " 

So  where  the  defendant  had  made  the  promise  sued  upon  in  con- 
sideration of  the  plaintiffs'  surrender  of  a  guaranty  which  had  been 
given  by  the  defendant,  but  which  turned  out  to  have  been  unen- 
forceable because  it  was  within  the  statute  of  frauds,  the  surrender 
was  held  a  sufficient  consideration  for  the  promise.     "Whether  or 

8«  Lawrence  v.  McCalmont,  2  How.  426,  11  L.  Ed.  326.  And  see  Appeal  of 
Ferguson,  117  Pa.  426,  11  AtL  885.  See  "Contracts,"  Dec.  Dig.  (Key-Xo.)  § 
53;    Cent.  Dig.  §§  231,  232. 

37  Smith  V.  Algar,  1  Barn.  &  Adol.  603.  See  "Contracts,"  Dec.  Dig.  {Key- 
Ko.)  §  71;    Cent.  Dig.  §§  295-298,  316-324. 

3  8  Traver  v. ,  1  Sid.  57 ;    Cliick  v.  Trevett,  20  Me.  462,  37  Am.  Dec.  68; 

Fisher  v.  Bartlett,  8  Greenl.  (Me.)  122,  22  Am.  Dee.  225 ;  Hind  v.  Holdship,  2 
Watts  (Pa.)  104,  26  Am.  Dec.  107 ;  Glasgow  v.  Hobbs,  32  Ind.  440 ;  Gates  v. 
Bales,  78  Ind.  2S5;'  DOYLE  v.  DIXON,  97  Mass.  208,  93  Am.  Dec.  80,  Throck- 
morton Gas.  Gontracts,  72;  Gobb  v.  Cowderj^  40  Vt  25,  94  Am.  Dec.  370; 
HaU  Mfg.  Co.  V.  Supply  Go.,  48  Mich.  331,  12  N.  W.  205.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  52;   Cent.  Dig.  §§  223,  22 J,. 

3-9  Bainbridge  v.  Firmstone,  8  Adol.  &  EL  743.  See  "Contracts'*  Dec.  Dig. 
(Kcu-.\o.)  i  54;   Cent.  Dig.  §§  233-255. 


142  CONSIDERATION  (Cll.  5 

no  the  guaranty  could  have  been  available,"  said  the  court,  "the 
plaintiffs  were  induced  by  the  defendant's  promise  to  part  with 
something-  which  they  might  have  kept,  and  the  defendant  obtained 
what  he  desired  by  means  of  that  promise."  *° 

On  this  principle,  the  refraining' by  a  person  from  the  use  of  liq- 
uor and  tobacco  for  a  certain  time  at  the  request  of  another  has 
been  held  a  sufficient  consideration  for  a  promise  by  the  latter  to 
pay  him  a  sum  of  money. *^  So  also,  where  a  person  traveled  for 
his  own  pleasure  and  benefit  at  the  request  of  another,  this  was 
held  sufficient  to  support  a  promise  by  the  latter  to  reimburse  him 
for  his  expenses;*^  and,  where  an  executor  forbore  to  act  as  such 
on  his  coexecutor's  promise  to  divide  commissions  with  him,  the 
forbearance  was  held  a  consideration  for  the  promise.*^  It  has 
even  been  held  that  the  liability  incurred  in  purchasing  property 
upon  the  faith  of  a  promise  made  by  another  to  contribute  a  certain 
sum  in  part  payment  of  the  price  is  a  sufficient  consideration  to 
make  the  promise  binding;**  and  where  a  person  agreed  to  con- 
tribute a  sum  of  money  for  the  purpose  of  discharging  a  mortgage 
on  church  property,  on  condition  that  the  church  would  raise  the 
balance  by  voluntary  subscription,  and  the  church  performed  the 
condition,  it  was  held  that  the  promise  became  binding.** 

*o  Haigh  V. -Brooks.  10  Adol.  &  El.  309.  And  see  Judy  v.  Louderman,  48 
Ohio  St.  562,  29  N.  E.  ISl ;  Churchill  v.  Bradley,  58  Vt.  403,  5  Atl.  189,  5G  Am. 
Rep.  503;  Sykes  v.  Chadwick,  18  Wall.  141,  21  L.  Ed.  824;  Merchant  v. 
O'Rourke,  111  Iowa,  351,  82  N.  W.  759.  Contra  :  McCollum  v.  Edmonds,  109 
Ala.  322,  19  South.  501,  and  Grimes  v.  Grimes,  89  S.  W.  548,  28  Ky.  Law  Rep. 
549;  the  former  holding  that  the  surrender  of  a  worthless  laud  certificate, 
and  the  latter  that  the  destruction  of  a  worthless  note  of  a  third  party,  does 
not  constitute  a  valid  consideration.  See  "Contracts,"  Dec.  Dig.  (Key-^o.)  § 
5Jt;   Cent.  Dig.  §§  29 IS  15. 

4  1  IIAMER  V.  SIDWAY,  124  N.  Y.  538,  27  N,  E.  256,  12  L.  R.  A.  463,  21 
Am.  St.  Rep.  693,  Throckmorton  Cas.  Contracts,  100;  Talbott  v.  Stemmons' 
Ex'r,  89  Ky.  222,  12  S.  W.  297,  5  L.  R.  A.  856.  25  Am.  St.  Rep.  531 ;  Lindell  v. 
Rokes,  60  Mo.  249,  21  Am.  Rep.  395.  See  "Contracts,"  Dec.  Dig.  (Key-Xo.)  § 
5Jt;   Cent.  Dig.  §  2J,8. 

42  Devecmon  v.  Shaw,  69  Md.  199,  14  Atl.  464,  9  Am.  St.  Rep.  422.  See,  also, 
Hoshor  V.  Kautz,  19  Wash.  258,  53  Pac.  51.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  54;    Cent.  Dig.  §  23G. 

*3  Ohlendorff  v.  Kanne,  66  Md.  495,  8  Atl.  351.  See,  also,  John  v.  John, 
122  Pa.  107,  15  Atl.  675.  -See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  5-J;  Cent. 
Dig.  §§  283-255,  352;  "Executors  and  Administrators,"  Dec.  Dig.  (Key-No.)  § 
19;   Cent.  Dig.  §  38. 

44  Steele  v.  Steele,  75  Md.  477,  23  Atl.  9.'>9 ;  Skidmore  v.  Bradford,  L  R.  8 
Eq.  134.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  66;    Cent.  Dig.  §  2'//. 

45  Roberts  v.  Cobb,  103  N..  Y.  600.  9  N.  E.  500.  See  "SuiscriiJlions,"  Dec. 
Dig.  (Key-No.)  §  15;    Cent.  Dig.  §§  14-17. 


§§    65-66)  ADEQUACY   OF  CONSIDERATION  143 

Marriage  is  a  valuable  consideration  for  a  promise,*'  and  mutual 
promises  to  marry  are  a  consideration  each  for  the  other.*^ 

We  have  seen,  in  discussing  contracts  under  seal,  that  want  of 
consideration  may  be  shown  notwithstanding  the  seal,  where  the 
contract  is  in  partial  restraint  of  trade.  The  fact,  however,  that  a 
contract  is  in  partial  restraint  of  trade  forms  no  exception  to  the 
doctrine  that  adequacy  of  consideration  cannot  be  inquired  into.*' 
Exception  in  Exchange  of  Fixed  Values 

The  doctrine  that  courts  of  law  will  not  inquire  into  the  ade- 
quacy of  consideration  is  based  on  their  inability  to  determine  what 
value  the  parties  may  have  attached  to  a  thing  given  or  promised, 
and  it  does  not  apply  to  an  exchange  of  things  the  value  of  which 
is  exactly  and  conclusively  fixed  by  law.*^  In  an  Indiana  case  on 
this  point  the  defendant  had  promised  to  pay  the  plaintiff  and  oth- 
ers $600  in  consideration  of  a  promise  by  them  to  pay  him  one 
cent,  and  the  consideration  was  held  inadequate.  "It  is  tpue,"  said 
the  court,  "that,  as  a  general  proposition,  inadequacy  of  considera- 
tion will  not  vitiate  an  agreement.  But  this  doctrine  does  not  ap- 
ply to  a  mere  exchange  of  sums  of  money — of  coin — whose  value 
is  exactly  fixed,  but  to  the  exchange  of  something  of,  in  itself,  inde- 
terminate value,  for  money,  or  perhaps  for  some  other  thing  of  in- 
determinate value.  In  this  case,  had  the  one  cent  mentioned  been 
some  particular  one  cent,  a  family  piece,  or  ancient,  remarkable 
coin,  possessing  an  indeterminate  value,  extrinsic  from  its  simple 
money  value,  a  different  view  might  be  taken.  As  it  is,  the  mere 
promise  to  pay  $600  for  one  cent,  even  had  the  portion  of  the  cent 
due  from  the  plaintiff  been  tendered,  is  an  unconscionable  con- 

48  Shadwell  v.  Shadwell,  9  C,  B.  (N.  S.)  159;  Wright  v.  Wright,  54  N.  Y. 
437 ;  Peck  v.  Vandemark,  99  N.  Y.  29,  1  N.  E.  41 ;  Dugan  v.  Gittings,  3  Gill 
(Md.)  138,  43  Am.  Dec.  306;  Rockafellow  v.  Newcomb,  57  111.  191;  Frank's 
Appeal,  59  Pa.  194 ;  Nowack  v.  Berger,  133  Mo.  24,  34  S.  W.  4S9,  31  L.  R.  A. 
810,  54  Am.  St  Rep.  6G3 ;  Wright  v.  Wright,  114  Iowa,  748,  87  N.  W.  709,  55 
L.  R,  A.  261.  Release  from  promise  to  marry  is  sufficient.  Snell  v.  Bray,  56 
Wis.  156,  14  N.  W.  14.  -See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  54;  Cent.  Dig.  § 
239. 

4  7  Post,  p.  145. 

4  8Guerand  v.  Bandelet,  32  ifd.  561,  3  Am.  Rep.  164;  Pierce  v.  Fuller,  8 
Mass.  223,  5  Am.  Dec.  102 ;  McClurg's  Appeal,  58  Pa.  51 ;  Hubbard  v.  Miller, 
27  Mich.  15,  15  Am.  Rep.  153;  Duffy  v.  Shockey,  11  Ind.  70,  71  Am.  Dec.  348; 
Linn  v.  Sigsbee,  67  111.  75;  Grasselli  v.  Lowden,  11  Ohio  St.  349;  Lawrence 
V.  Kidder,  10  Barb.  (N.  Y.)  64L  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §§  55, 
116;  Cent.  Dig.  §§  231,  51,2. 

4  9Langd.  Cont.  70;  SClTNTin-.L  v.  NELL,  17  Ind.  20,  79  Am.  Dea  453, 
Throckmorton  Gas.  Contracts,  103;  Shepard  v.  Rhodes,  7  R.  I.  470,  84  Am. 
Doc.  573;  Brooks  v.  Ball,  18  Johns.  (N.  Y.)  337.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  53;   Cent.  Dig.  §§  231,  232. 


144  CONSIDERATION  (Ch.  5 

tract,  void  at  first  blush  upon  its  face,  if  it  be  regarded  as  an  earnest 
one." »» 

In  Equity 

Inadequacy  of  consideration  will  be  taken  into  account  to  some 
extent  by  courts  of  equity  in  the  exercise  of  their  peculiar  power  to 
compel  specific  performance  of  contracts.  It  has  been  held  that 
inadequacy  of  consideration,  without  more,  is  ground  upon  which 
specific  performance  may  be  resisted;  but  the  better  doctrine  re- 
quires that  there  shall  be  such  gross  inadequacy  as  to  shock  the 
conscience,  and  amount  in  itself  to  evidence  of  fraud. ^^  And  if  a 
contract  is  sought. to  be  avoided  on  the  ground  of  fraud  or  undue 
influence,  the  consideration  may  be  inquired  into,  and  inadequacy 
of  consideration  will  be  regarded  as  corroborative  evidence  in  sup- 
port of  the  suit;°^  but  mere  inadequacy  of  consideration  alone  is 
not  enough  to  warrant  the  court's  interference.*' 

SUFFICIENCY  OR  REALITY   OF  CONSIDERATION 

67.  Though  the  consideration  need  not  be  adequate  to  the  promise, 
it  must  not  be  illusory  or  unreal;  some  benefit  must  be 
conferred  on  the  promisor,  or  some  detriment  suffered  by 
the  promisee. 

Reality  of  Consideration 

Although  courts  of  law  will  not  inquire  into  the  adequacy  of 
consideration,  they  will  insist  that  it  shall  not  be  illusory  or  unreal. 

BO  SCHNELL  V.  NELL,  17  Ind.  29,  79  Am.  Dec.  453,  Throckmorton  Cas. 
Contracts,  103.  See  ''Contracts,"  Dec.  Dig.  [Key-No.)  §  53;  Cent.  Dig.  §§  231, 
232. 

61  Coles  V.  Trecothick,  9  Ves.  234;  Conrad  v.  Schwamb,  53  Wis.  378,  10  N. 
W.  SD5 ;  Conaway  v.  Sweeney,  24  W.  Va.  643 ;  Randolph's  Ex'r  v.  Quidnick 
Co.,  135  U.  S.  457,  10  Sup,  Ct.  655,  34  L.  Ed.  200;  Watson  v.  Doyle,  130  111. 
415,  22  N.  E.  613 ;  Eaton,  Eq.  539.  In  some  states  an  adequate  consideration 
is  required  by  statute.  Morrill  v,  Everson,  77  Cal.  114,  19  Pac.  190.  See 
"Specific  Performance,"  Dec.  Dig.  (Key-No.)  §§  49,  50;    Cent.  Dig.  §§  140-152. 

52  Gififord  V.  Thorn,  9  N.  J.  Eq.  702;  Grindrod  v.  Wolf,  38  Kan.  292,  16  Pac. 
691 ;  Bowman  v.  Patrick  (C.  C.)  36  Fed.  138 ;  Cofer  v.  Moore,  87  Ala.  705,  6 
South.  306;  Burke  v.  Taylor,  94  Ala.  530,  10  South.  129.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-430;  "Evidence,"  Dec.  Dig.  (Key-No.) 
§  419;    Cent.  Dig.  §§  1912-192S. 

53  Phillips  V.  Pullen,  45  N,  J.  Eq.  5,  16  Atl.  9 ;  Jones  v.  Degge,  84  Va.  685, 
5  S.  E.  799;  Dent  v,  Ferguson,  132  U.  S.  50,  10  Sup.  CL  13,  33  L.  Ed.  242; 
Berry  v.  Hall,  105  N.  C.  154,  10  S.  E.  903 ;  Brockway  v.  Harrington,  82  Iowa, 
23,  47  N.  W,  1013 ;  Miles  v.  Iron  Co.,  125  N.  Y.  294,  26  N.  E.  261 ;  Bierne  v. 
Ray,  37  W.  Va.  571,  16  S,  E.  804 ;  Eaton,  Eq.  307.  And  see  the  cases  cited  in 
the  preceding  note.  See  "Contracts,"  Dec  Dig.  (Key -No.)  §  94;  Cent.  Dig.  §§ 
4S0-430. 


§§    68-70)  MUTUAL   PEOMISES — MUTUALITY  145 

Strictly  speaking,  what  we  call  an  "unreal  consideration"  is  no  con- 
sideration at  all,  but  this  use  of  the  term  cannot  well  mislead.  To 
understand  what  the  law  regards  as  a  real  and  what  as  an  unreal 
consideration,  it  will  be  well  to  inquire  into  the  various  forms  which 
consideration  may  assume,  and  to  note  the  grounds  upon  which 
certain  alleged  considerations  have  been  held  to  be  of  no  real  value 
in  the  eye  of  the  law. 

Forms  of  Consideration 

The  consideration  for  a  promise  may  be  an  act  or  a  forbearance, 
or  a  promise  to  do  or  forbear.  When  a  promise  is  given  for  a 
promise,  the  contract  is  said  to  be  made  upon  an  executory  consid- 
eration. The  obligations  created  by  it  rest  equally  upon  both  par- 
ties, each  being  bound  to  a  future  act.  An  example  is  in  case  of 
mutual  promises  to  marry,  in  which  the  consideration  for  the  prom- 
ise of  each  is  the  promise  of  the  other.  When  the  consideration  for 
a  promise  is.  an  act  or  forbearance,  the  contract  is  said  to  be  made 
upon  a  consideration  executed.  This  arises  when  either  the  offer 
or  acceptance  is  signified  by  one  of  the  parties  doing  all  that  he  is 
bound  to  do  under  the  contract  so  created.^* 

A  contract  consisting  of  mutual  promises,  so  that  both  parties 
are  bound  to  some  future  act  or  forbearance,  is  said  to  be  bilateral. 
A  contract  in  which  the  offer  or  acceptance  is  signified  by  one  of 
the  parties  doing  all  he  is  required  to  do  under  the  agreement,  leav- 
ing outstanding  obligations  on  the  other  party  only,  is  said  to  be 
unilateralr 


SAME— MUTUAL  PROMISES— MUTUALITY 

68.  A  promise  is  a  sufficient  consideration  for  a  promise. 

69.  The  promises  must  be  concurrent. 

70.  The  promise  may  be  contingent  or  conditional,  except  that — 
MUTUALITY — Mutuality  of  engagement  is  necessary,  and,  if 

the  condition  or  contingency  produces  want  of  mutuality, 
the  consideration  is  insufficient.  Both  parties  must  be 
bound  or  neither  is  bound. 

It  is  well  settled  that  a  promise  is  a  sufficient  consideration  for  a 
promise. '^°     And  this  is  true  although  the  performance  of  the  act 

B*  Thomas  v.  South  Haven  &  E.  R.  Co.,  138  Mich.  50,  100  N.  W.  1009.  See 
•'Contracts:'  Dec.  Dig.  (Kev-No.)  §  78;    Cent.  Dig.  §§  S5ft-S56. 

68  ilic;:ins  v.  Hill,  .56  Law  T.  R.  (N.  S.)  426;  Strangborough  and  Warner's 
Case,  4  Leon,  3;  Gower  v.  Cayii>er,  Cro.  Eliz.  5-13;  Nichols  v.  Raj'nbred,  Ilob. 
Clabk  Cont.(3d  Ed.)— 10 


1^6  CONSIDERATION  (Ch.  5 

promised  will  result  in  greater  benefit  to  the  promisor  than  to  the 
promisee.^'  In  the  case  of  mutual  promises  to  marry,  the  promise 
of  each  party  is  a  sufficient  consideration  for  the  promise  of  the 
other;  ^'^  and  so  it  is  in  any  other  case  of  mutual  promises,  provid- 
ed, of  course,  the  promises  are  to  do  something  of  value  in  the  eye 
of  the  law.  In  other  words,  as  a  rule,  a  promise  to  do  a  thing  is 
just  as  valuable  a  consideration  as  the  actual  doing  of  it  would  be. 
After  a  person  had  sold  and  conveyed  land,  the  parties,  differing  as 
to  the  quantity  of  land  embraced  in  the  tract,  made  an  agreement 
by  which  the  land  was  to  be  surveyed,  and  the  grantor  should  pay 
for  any  deficiency,  while  the  grantee  should  pay  for  any  excess  over 
the  acreage  mentioned  in  the  deed.  It  turned  out  that  there  was 
an  excess,  but  the  grantee,  when  sued  on  his  promise  to  pay  there- 
for, claimed  that,  as  all  the  land  was  conveyed  by  the  deed,  his 
promise  was  without  consideration.  It  was  held,  however,  that 
the  promise  of  the  grantor  to  pay  for  any  deficiency  was  a  sufficient 
consideration. °* 

The  promises,  to  constitute  a  consideration  for  each  other,  must 
be  concurrent,  or  become  obligatory  at  the  same  time ;  otherwise 
each  will  be  without  consideration  at  the  time  it  is  made,  and  both 
will  therefore  be  nuda  pacta.^^  As  explained  in  treating  of  offer 
and  acceptance,  some  time  must  necessarily  elapse  between  an  offer 
and  its  acceptance,  and  in  some  cases  a  considerable  time  mav 
elapse.  The  offer,  however,  is  considered  as  continuing  during  the 
time  allowed  for  acceptance;  and  when  it  is  accepted  by  the  giv- 
ing of  a  promise  both  promises  become  obligatory  at  the  same  time, 
or  are  concurrent. 


SS;  Missisquoi  Bank  v.  Sabin,  48  Vt  239;  Buckingham  v.  Ludlum,  40  N.  J. 
Eq.  422,  2  Atl.  265 ;  Phillips  v.  Preston,  5  How.  278,  12  L.  Ed.  152 ;  Funk  v. 
Hough,  29  111.  145 ;  Coleman  v.  Eyre,  45  N.  Y.  38 ;  Briggs  v.  Tillotson,  8  Johns. 
(N.  Y.)  304 ;  Baker  v.  Railroad  Co.,  91  Mo.  152,  3  S.  W.  486 ;  Porter  v.  Rose, 
12  Johns.  (N.  Y.)  209,  7  Am.  Dee.  306;  Cramer  v.  Redman,  10  Wyo.  328,  68  Pae. 
1003.  Promise  to  attend  a  person's  funeral  in  return  for  promise  by  the  lat- 
ter to  pay  money.  Earle  V;  Angell,  157  Mass.  294,  32  N.  E.  164.  See  "Con- 
tracts;' Dec.  Dig.  (Key-'So.)  §  56;   Cent.  Dig.  §§  SU-353. 

5  6  Dendy  v.  Russell,  74  Pac.  248,  67  Kan.  721.  See  "Contracts"  Dec.  Di{i. 
(Key-No.)  §  57;   Cent.  Dig.  §§  3U,  SJfS. 

5  7  Harrison  v.  Cage,  5  Mod.  411 ;  Holt  v.  "Ward  Clemencieux,  2  Strange.  937. 
See  "Breach  of  Marriage  Promise"  Dec.  Dig.  (Key-No.)  §  5;    Cent.  Dig.  §  2. 

5  8  Seward  v.  Mitchell,  1  Cold.  (Tenn.)  87 ;  Howe  v.  O'Mally,  5  N.  C.  287, 
3  Am.  Dec.  693.  It  would  be  otherwise  if  there  were  no  promise  by  the  gran- 
tor. Smith  V.  Ware,  13  Johns.  (N.  Y.)  259.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §§  56-58;  Cent.  Dig.  §§  SU-SoS. 

59  Nichols  V.  Raynbred,  Hob.  88;  Keep  v.  Goodrich.  12  Johns.  (N.  Y.)  397: 
Tucker  v.  Woods,  12  Johns.  (N.  Y.)  190,  7  Am.  Dec.  305 ;  Buckingham  v.  Lud- 


§§    68-70)  MUTUAL    PROMISES — MUTUALITY  147 

A  promise  which  is  merely  voidable,  as  in  case  of  an  infant,  may 
be  a  sufficient  consideration.*"  And,  as  we  have  seen,  an  oral 
promise  which  is  unenforceable  within  the  statute  of  frauds  is  gen- 
erally held  to  be  a  good  consideration  for  the  promise  of  the  other 
if  he  has  signed  the  writing.*^ 

Voluntary  Subscriptions 

Voluntary  subscriptions  by  a  number  of  persons  to  promote  some 
object  in  which  they  have  a  common  interest — as,  for  instance, 
where  a  number  of  persons  voluntarily  promise  to  pay  a  certain 
sum  each  to  found  a  college — have  been  said  to  furnish  an  illustra- 
tion of  mutual  promises.  Some  courts  have  sustained  them  on  the 
ground  that  the  promise  of  each  subscriber  is  the  consideration  for 
the  promises  of  the  others. "^^  This  ground,  however,  appears  to  be 
untenable,  for  the  reason  that  as  a  matter  of  fact  the  subscribers, 
in  most  cases  at  least,  do  not  give  their  promises  in  consideration 
of  each  other.*^  An  additional  objection  to  a  recovery  by  the  bene- 
ficiary in  such  cases  is  that  the  beneficiary,  not  being  a  party  to 
the  contract,  cannot  maintain  an  action  upon  it,®*  except  in  states 
which  have  established  the  broad  rule  that  a  person  for  whose  ben- 
efit a  promise  is  made  can  sue  upon  it.®^  The  liability  of  the  sub- 
scriber upon  his  subscription  in  such  cases  is  generally  enforced, 
but  different  courts  advance  different  views  in  support  of  their 
holdings. ®°  By  some  courts  it  is  held  that  the  subscription  is  an 
offer  which  becomes  binding  by  acceptance  when  the  beneficiary 

lum,  40  N.  J.  Eq.  422,  2  AtL  265.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  56- 
58;   Cent.  Dig.  §§  3JiJ,-S53. 

60  Holt  V.  Ward  Clemencieux,  2  Strange,  937;  post.  p.  185.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §§  56-58;  Cent.  Dig.  §§  3J,4-S53. 

81  Ante,  pp.  110,  lai. 

62  Higert  v.  Asbury  University,  53  Ind.  326  (collecting  cases) ;  Lathrop  v. 
Knapp,  27  Wis.  214 ;  Trustees  of  Troy  Conference  Academy  v.  Nelson.  24  Vt. 
ISO ;  Christian  College  v.  Hendley,  49  Cal.  347 ;  Allen  v.  Duffie,  43  Mich.  1,  4 
N.  W.  427,  38  Am.  Rep.  159;  First  Universalist  Church  v.  Pungs,  126  Mich. 
670,  86  N.  W.  235 ;  Irwin  v.  Lombard  University,  56  Ohio  St.  9,  46  N.  E.  63, 
36  L.  R.  A.  239,  60  Am.  St.  Rep.  727 ;  Waters  v.  Union  Trust  Co.,  129  Mich. 
040,  89  N.  W.  687.    -See  "Subscriptions,"  Dec.  Dig.  (Key-No.)  §  15;    Cait.  Dig. 

§§  i^i-n. 

6  3  Cottage  Street  Church  v.  Kendall,  121  Mass.  528,  23  Am.  Rep.  286;  Cul- 
ver V.  Banning,  19  Minn.  303  (Gil.  260) ;  Presbyterian  Church  of  Albany  v. 
Cooper,  112  N.  Y.  517,  20  N.  E.  3.52,  3  L.  R.  A.  4(\S,  8  Am.  St.  Rep.  767.  See 
"Subscriptions;'  Dec.  Dig.  (Key-No.)  §  15;  Cent.  Dig.  §§  14-17. 

64  Presbyterian  Church  of  Albany  v.  Cooper,  supra.  Cf.  Keuka  College  v. 
Ray,  li;7  N.  Y.  96,  60  N.  E.  325.  See  post,  p.  442.  See  "Subscriptions;'  Dec. 
Dig.  (Key-No.)  §  15;    Cent.  Dig.  §§  I'l-H. 

8"  Irwin  V.  Lombard  University,  supra.  «6  See  15  Harv.  L.  R.  312. 


148  CONSIDERATION  (Cll.  5 

in  reliance  upon  it  incurs  expense  or  liability.'''  Other  courts  sus- 
tain the  liability  of  the  subscriber  on  the  ground  of  equitable  es- 
toppel arising  from  the  expenditure  of  money  or  incurring  of  liabil- 
ity by  the  beneficiary  in  reliance  upon  the  subscription.®*  By  still 
other  courts  it  is  held  that  when  the  subscription  is  accepted  there 
is  an  implied  counter  promise  on  the  part  of  the  beneficiary,  which 
is  the  consideration.*'  In  accordance  with  this  latter  view,  it  is  said 
in  a  recent  Pennsylvania  case:  ""^  "The  general  trend  of  judicial  de- 
cision may  therefore  be  said  to  be  in  the  direction  of  sustaining 
contracts  for  subscriptions  or  donations  to  churches  or  charitable 
or  kindred  institutions,  where  the  same  have  been  duly  accepted ; 
their  acceptance  constituting  a  good  consideration,  for  the  reason 
that  obligations  are  thereby  assumed." 

Contingent  and  Conditional  Promises — Options 

In  bilateral  contracts — that  is,  where  the  consideration  for  a 
promise  is  a  promise — the  whole  contract  may  be  intended  by  the 
parties  to  be  contingent,  so  that  obligation  is  to  arise  under  it  only 
upon  the  occurrence  of  some  event  or  contingency.  If  A.  offers 
to  supply  at  a  certain  price  such  goods  as  B.  may  order,  and  B. 
promises  to  pay  at  that  price  for  such  goods  as  he  may  order,  there 
is,  of  course,  no  contract,  for  B.  has  not  promised  to  order  any 
goods,  and  it  is  optional  with  him  whether  his  promise  to  pay  shall 
ever  come  into  effect*     Both  parties  must  be  bound  or  neither 

87  Sherwin  v.  Fletcher,  168  Mass.  413,  47  N.  E.  197 ;  Grand  Lodge  I.  O.  G. 
T.  V.  Farnham,  70  Cal.  158,  11  Pac.  592.  See,  also,  Twenty-Third  St.  Baptist 
Church  V.  Cornell,  117  N.  Y.  COl,  23  N.  E.  117,  6  L.  K.  A.  807;  Town  of  Grand 
Isle  V.  Kinney,  70  Vt  381,  41  Atl.  130;  Richelieu  Hotel  Co.  v.  International 
Military  Encampment  Co.,  140  111.  248,  29  N.  E.  1044,  33  Am.  St  Rep.  234; 
Hodges  V.  Nalty,  104  Wis.  464,  80  N.  W.  726.  See  "Subscriptions,"  Dec.  Dig. 
{Key-No.)  §  15;   Cent.  Dig.  §§  lJ,-n. 

6  8  BEATTY'S  ESTATE  v.  WESTERN  COLLEGE  OF  TOLEDO,  IOWA,  177 
111.  280,  52  N.  E.  432,  42  L.  R.  A.  797,  69  Am.  St.  Rep.  242,  Throckmorton  Cas. 
Contracts,  100.  See,  also,  Irwin  v.  Lombard  University,  56  Ohio  St.  9,  46  N. 
E.  63,  36  L.  R.  A.  239,  60  Am.  St.  Rep.  727;  Simpson  Centenary  College  v. 
Tuttle,  71  Iowa,  590,  33  N,  W.  74.  See  ''Subscriptions,"  Dec.  Dig.  (Key-No.)  § 
15;   Cent.  Dig.  §§  14-17. 

69  Trustees  of  INIaine  Cent.  Inst  v.  Haskell,  73  Me.  140 ;  Barnett  v.  Franklin 
College,  10  Ind.  App.  103,  37  N.  E.  427.  And  see  Keuka  College  v.  Ray,  167 
N.  Y.  96,  60  N.  E.  325.  See  "Subscriptions,"  Dec.  Dig.  (Key-No.)  §  5;  Cent. 
Dig.  §§  6,  7. 

TO  Presbyterian  Board  of  Foreign  Missions  v.  Smith,  209  Pa.  361,  58  Atl. 
689,  per  Thompson,  J.  See  "Subscriptions,"  Dec.  Dig.  (Key-No.)  §  5;  Cent. 
Dig,  §§  6,  7. 

71  American  Cotton  Oil  Co.  v.  Kirk,  68  Fed.  791,  15  C.  C.  A.  540;  RafolovitTs 
V.  Tobacco  Co.,  73  Hun,  87,  25  N.  Y.  Supp.  1036;  Chicago  &  G.  E.  Ry.  Co.  v. 
Dane,  43  N.  Y.  240;  Davie  v.  Mining  Co.,  93  Mich.  491,  53  N.  W.  625,  24  L, 
R.  A.  357 ;   Teipel  v.  Meyer,  106  Wis.  41.  81  N.  W.  9S2 ;    Dennis  v.  Slyfield,  117 


§§    G8-70)  MUTUAL   PROMISES — MUTUALITY  149 

is  bound;  in  other  words,  there  must  be  mutuality  of  eng-age- 
ment.'=^  In  such  a  case,  indeed,  if  before  the  ofTer  is  withdrawn,  B 
orders  goods,  A.  is  bound  to  sell  at  the  price  named. ^^ 

On  the  other  hand,  if  A.  offers  to  supply  at  a  certain  price  all  the 
goods  of  a  certain  kind  which  B.  may  need  in  his  business  for  a 
certain  time,  and  B.  promises  to  buy  such  goods,  the  promises  are 
mutually  binding;  ^*  for  although  B.  may  not  need  the  goods,  and 
hence  is  not  absolutely  bound  to  pay,  in  the  event  of  the  contingen- 
cy of  his  needing  the  goods  he  is  bound  to  buy  them  of  A.  So,  if 
the  agreement  is  for  the  purchase  by  B.  of  all  or  a  certain  part  of 

Fed.  474,  54  C.  C.  A.  520.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  58,  59;  Cent. 
Dig.  §§  346-348;  "Sales,"  Dec.  Dig.  (Key-No.)  §§  2J,,  25;  Cent.  Dig.  §§  .',9-52; 
"Vendor  and  Purchaser,"  Dee.  Dig.  (Key-No.)  §  18;    Cent.  Dig.  §  23. 

7  2  Keep  V.  Goodrich,  12  Johns.  (N.  Y.)  397;  Ewins  v.  Gordon,  49  N.  H.  444; 
Burnet  v.  Bisco,  4  Johns.  (N.  Y.)  235;  McKinley  v.  Watkins,  13  111.  140; 
L'Amoreux  v.  Gould,  7  N.  Y.  349,  57  Am.  Dec.  524 ;  Thayer  v.  Burchard,  99 
Mass.  508;  Smith  v.  Weaver,  90  111.  392;  Bean  v.  Burbank,  16  Me.  458,  33 
Am.  Dec.  681 ;  Mers  v.  Insurance  Co.,  ^  Mo.  127 ;  Stembridge  v.  Stembridge's 
Adm'r,  87  Ky.  91,  7  S.  W.  611;  Shenandoah  Val.  R.  Co.  v.  Dunlop,  86  Va. 
340,  10  S.  E.  239 ;  Barker  v.  Critzer,  35  Kan.  459,  11  Pac.  382 ;  Warren  v.  Cos- 
tello,  109  Mo.  338,  19  S.  W.  29,  32  Am.  St.  Rep.  669;  Greybill  v.  Brugh,  89 
Va.  895,  17  S.  E.  5.-8.  21  L.  R.  A.  133,  37  Am.  St  Rep.  894 ;  Wagner  v.  J.  & 
G.  Meakin.  92  Fed.  76.  33  C.  C.  A.  577  ;  Morrow  v.  Express  Co.,  101  Ga.  810. 
28  S.  E.  998.  See,  also,  cases  cited,  p.  146,  note  59.  See  "Sales,"  Dec  Dig 
(Key-No.)  §§  24,  25;    Cent.  Dig.  §§  ^.9-52. 

7  3  G.  N.  Railway  Co.  v.  Witham,  L  R.  9  C.  P.  16;  Johnston  v.  Trippe  (C. 
C.)  33  Fed.  530;  Moses  v.  McClain,  82  Ala.  370,  2  South.  741;  Wisconsin,  I. 
&  N.  Ry.  Co.  V.  Braham,  71  Iowa,  484,  32  N.  W.  392;  Davis  v.  Robert,  89  Ala. 
402,  8  South.  114,  18  Am.  St.  Rep.  126;  Ross  y.  Parks,  93  Ala.  153,  8  South. 
368.  11  L.  R.  A.  148,  30  Am.  St.  Rep.  47;  Thayer  v.  Burchard,  99  Mass.  508; 
Cooper  v.  Wheel  Co.,  94  Mich.  272,  54  N.  W.  39,  34  Am.  St  Rep.  341.  See, 
also,  Michigan  Bolt  &  Nut  Works  v.  Steel,  111  Mich.  153.  69  N.  W.  241.  Filing 
of  bill  by  vendee  for  specific  performance  has  been  held  to  supply  mutual- 
ity. Dynan  v.  McCulloch,  46  N.  J.  Eq.  11,  18  Atl.  822.  But  most  of  the  casps 
are  to  the  contrary.  See  cases  cited  ante,  note  72.  See  "Sales,"  Dec  Dia 
(Key-No.)  §§  24,  25;  Cent.  Dig.  §§  49-52. 

7  4  See  Sheffield  Furnace  Co.  v.  Coke  Co.,  101  Ala.  446,  14  South.  672;  Wells 
V.  Alexandre,  130  N.  Y.  642,  29  N.  E.  142,  15  L.  R.  A.  218 ;  Smith  v.  Morse, 
20  La.  Ann.  220;  Minnesota  Lumber  Co.  v.  Coal  Co.,  160  111.  8.5.  43  N.  B.  774! 
31  L.  R.  A.  529;  Hickey  v.  O'Brien,  123  Mich.  Oil,  82  N.  W.  241,  49  L.  R.  A. 
594,  81  Am.  St  Rep.  227;  E.  G.  Dailey  Co.  v.  Can  Co.,  128  Mich.  501,  87  n! 
W.  761 ;  Manhattan  Oil  Co.  v.  Lubricating  Co.,  113  Fed.  923,  51  C.  C.  A.  553 ; 
Excelsior  Wrapper  Co.  v.  Messinger,  116  Wis.  549.  93  N.  W.  4.TO;  Loudenback 
Fertilizer  Co.  v.  Phosphate  Co.,  121  Fed.  298,  58  C.  C.  A.  220,  61  L.  R.  A.  402. 
Contra,  Bailey  v.  Austrian,  19  Minn.  535  (Gil.  465).  An  agreement  by  a  whole- 
sale dealer  to  .supply  a  retailer,  which  leaves  it  practically  optional  to  increas^e 
or  diminish  his  orders  with  the  rise  or  fall  of  prices,  held  void  for  want  of 
mutuality.  Crane  v.  C.  Crane  &  Co.,  105  Fed.  869,  45  C.  C.  A,  96.  See,  al.'^o. 
Cold  P.Inst  Transp.  Co.  v.  Bolt  &  Nut  Co.,  114  Fed.  77.  .52  C.  C.  A.  25,  57  I^  R. 
A.  G'M.    See  "Sales,"  Dec.  Dig.  (Key-No.)  §§  24,  25;  Cent.  Dig.  §§  49-52. 


150  CONSIDERATION  (Ch.  5 

all  the  goods  of  a  certain  kind  that  A.  may  produce  in  a  certain 
period/^ 

Somewhat  similar  in  character  are  the  considerations  which  con- 
sist in  conditional  promises;''*  as,  for  instance,  where  a  person 
promises  to  do  something  for  a  reward,  but  the  other  party  only 
binds  himself  to  pay  the  reward  upon  the  happening  of  an  event 
which  may  not  be  under  the  control  of  either  party.  Such  would  be 
the  case  in  a  building  contract  where  the  promise  to  pay  for  the 
work  to  be  done  is  made  conditional  upon  the  approval  of  the  ar- 
chitect. Again,  the  promise  may  be  conditional  on  something  hap- 
pening, as  in  case  of  promises  in  a  charter  party  which  are  not  to 
take  effect  if  certain  specified  risks  occur.  In  the  one  case  the 
promise  depends  for  its  fulfillment  upon  a  condition  precedent;  in 
the  other  it  is  liable  to  be  defeated  by  a  condition  subsequent.  In 
neither  case  does  its  conditional  character  prevent  it  from  forming 
a  sufficient  consideration  for  promises  given  in  return.  These  cases 
are  for  consideration  in  a  subsequent  chapter.''^ 


SAME— FORBEARANCE  TO  EXERCISE  A  RIGHT 

71.  Forbearance  or  a  promise  to  forbear  from  doing  what  one  is 

otherwise  entitled  to  do  is  a  sufficient  consideration. 

72.  Forbearance  or  a  promise  to  forbear  from  doing  what  one  can- 

not legally  do  is  no  consideration ;  but  if  a  right  is  doubt- 
ful, so  that  there  are  reasonable  grounds  for  trying  to  en- 
force it,  forbearance  is  a  sufficient  consideration. 

73.  COMPROMISE.     Where  the  forbearance  is  in  the  compromise 

of  a  disputed  claim  made  or  action  brought  in  good  faith 
(and  on  reasonable  grounds),'^  forbearance  to  insist  or  sue 

7  5McCall  Co.  V.  Icks,  107  Wis.  232,  83  N.  W.  300.  See,  also,  Burffess  Sul- 
phite Fibre  Co.  v.  Broomfield,  180  Mass.  2S3,  62  N.  E.  307;  Brawley  v.  U. 
.S.,  96  U.  S.  168,  24  L.  Ed.  622 ;  Lobeustein  v.  U.  S.,  91  U.  S.  324,  23  L.  Ed. 
410 ;  Grant  v.  U.  S.,  7  Wall.  331,  19  L.  Ed.  194.  Where  land  was  agreed  to 
be  sold,  and  the  title  was  defective,  by  reason  of  a  siiit  to  set  aside  a  will 
under  which  the  vendor  claimed,  an  agreement  to  postpone  execution  of  the 
contract  until  determination  of  the  suit  was  sustained  on  the  ground  that  the 
vendee  would  be  bound  to  accept  the  title  If  the  will  should  be  sustained. 
Hale  V.  Craveuer,  128  111.  408,  21  N.  E.  534.  See  ante,  p.  149,  note  74.  8ee 
"Sales,"  Dec.  Dig.  (Key-No.)  §§  2-),  25;  Cent.  Dig.  §§  ^D-52. 

7  6  Ensign  v.  Parli,  69  Kan.  870.  77  Pac.  583.  See  ''Contracts,"  Dec.  Dig 
iKey-No.)  §§  58,  59;   Cent.  Dig.  §§  346-348. 

7  7  Chapter  11.  pp.  576-578. 

7  8  As  to  the  qualification  introduced  by  the  words  in  parentheses,  see  post, 
p.  155. 


§§    71-73)  FORBEARANCE   TO    EXERCISE    A    RIGHT  151 

on  the  claim,  or  further  to  prosecute  the  action,  is  a  suffi- 
cient consideration  without  regard  to  the  validity  of  the 
claim. 

Consideration  may  consist  in  a  forbearance  or  promise  to  for- 
bear from  doing  what  one  is  otherwise  entitled  to  do ;  as,  for  in- 
stance, where  a  person  abstains  from  the  use  of. liquor  and  tobacco, 
on  another's  promise  to  pay  him  money.''*  The  abandonment  of 
any  right,  or  a  promise  to  forbear  from  exercising  it,  is  a  sufficient 
consideration  for  a  promise.*"  The  right  may  be  legal  or  equitable, 
certain  or  doubtful ;  and  it  may  exist  against  the  promisor  or 
against  a  third  party. ®^  A  creditor,  if  he  extends  the  time  for  pay- 
ment of  the  debt,  gives  up  a  right,  and  so  furnishes  a  consideration 
for  an  additional  promise  by  the  debtor,®^  or  for  the  promise  of  a 
third  party  to  guaranty  or  pay  the  debt.^^  So,  also,  the  discharge 
of  a  debtor  from  the  debt,®*  or  from  lawful  imprisonment  for  the 

7  9  Ante,  pp.  133,  134. 

80  Blake  v.  Peek,  11  Vt.  4S3;  Leverenz  v.  Haines,  32  111.  357;  Woodburn  v. 
Woodburn,  123  111.  608,  14  N.  E.  58,  16  N.  E.  209;  Calkins  v.  Chandler,  36 
Mich.  320,  24  Am.  Rep.  593;  Marshalltown  Stone  Co.  v.  Manufacturing  Co., 
114  Iowa,  574,  87  N.  W.  496;  Waters  v.  White,  75  Conn.  88,  .52  Atl.  401. 
Agreement  between  attachment  creditors  of  a  debtor.  Mygatt  v.  Tarbell,  78 
Wis.  351,  47  N.  W.  018 ;  Doan  v.  Dow,  8  Ind.  App.  324,  35  N,  E.  700 ;  Brown- 
ell  V.  Harsh,  29  Ohio  St.  631.  Forbearance  to  contest  will.  Rector,  etc.,  of 
St  Mark's  Church,  v.  Teed,  120  N.  Y.  583,  24  N.  E.  1014.  The  release  by  a 
person  of  a  claim,  in  good  faith,  of  a  future  contingent  interest  in  certain  land 
under  the  will  of  a  deceased  ancestor,  is  a  sufficient  consideration  for  a  note 
given  therefor,  whether  he  in  fact  had  any  interest  In  the  land  or  not.  Brooks 
V.  Wage,  85  Wis.  12,  54  N.  W,  997.  Release  of  mortgage.  Norris  v.  Vosburgh, 
98  Mich.  426,  57  N.  W.  204.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  71;  Cent. 
Dig.  §§  295-32J,. 

81  Release  by  wife  of  Inchoate  right  of  dower  will  support  a  promise  by  her 
husband's  grantee  to  pay  her  money,  Worley  v.  Sipe,  111  Ind.  238,  12  N.  E. 
385.  Release  of  inchoate  right  of  homestead  in  public  lands  will  support  a 
promise.  McCabe  v.  Caner,  68  Mich.  182,  35  N.  W.  901,  And  see  Paxton  Cat- 
tle Co.  V.  Bank,  21  Neb.  021,  33  N.  W,  271,  59  Am.  Rep.  852.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  71;   Cent.  Dig.  §§  205-324. 

82  Lipsmeier  v.  Vebslage  (C.  C.)  29  Fed.  175;  Martin  v,  Nixon,  92  Mo.  26,  4 
S.  W.  503;  Van  Gorder  v.  Bank  (Pa.)  7  Atl.  144;  Brown  v.  Bank.  115  Ind. 
572,  18  N.  E.  56 ;  Lundberg  v.  Elevator  Co.,  42  Minn.  37,  43  N.  W.  685 ;  San- 
ders V.  Smith  (Miss.)  5  South.  514 ;  Eraser  v.  Backus,  02  Mich.  540,  29  N.  W. 
32;  Lodge  v,  Hulings,  63  N.  J.  Eq.  159,  .51  Atl.  1015.  -See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  71;    Cent.  Dig.  §§  2fi5-32J,. 

83  Calkins  v.  Chandler,  36  Mich.  320.  24  Am.  Rep.  593;  Bank  of  New  Han- 
over V,  Bridgers,  98  N.  C.  67,  3  S.  E.  826,  2  Am.  St.  Rep.  317;  iMoyors  v. 
Hockenbury,  34  N.  J.  Law,  346,  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  71; 
Cent.  Dig.  §§  29.5-S2.',. 

»*  Whitney  v.  Clary,  145  Mass.  156,  13  N.  E.  393;    Fulton  v.  I^uglilin.  118 


152  CONSIDERATION  (Ch.  5 

debt,®'  is  a  consideration  for  the  promise  of  a  third  person  to  pay 
the  debt;  and  the  surrender  or  cancellation  of  a  note  or  mortgage 
is  a  consideration  for  a  new  note  or  mortgage.^* 

It  has  been  held  that  agreement  to  forbear  is  necessary,  and  that 
mere  forbearance  to  sue,  for  instance,  witliout  any  agreement  to 
that  effect,  is  not  a  sufficient  consideration  for  the  promise  of  an- 
other to  pay  the  debt  of  the  person  liable,  though  the  act  of  for- 
bearance may  have  been  induced  by  the  promise;  *^  but  upon  prin- 
ciple it  seems  that  actual  forbearance  upon  request  and  in  reliance 
upon  the  promise  is  sufficient.^* 

Time  of  Forbearance 

Questions  have  been  raised  as  to  the  length  of  time  over  which  a- 
forbearance  to  sue  must  extend  in  order  to  constitute  a  considera- 
tion. It  has  even  been  held  that  a  promise  of  forbearance  for  an  un- 
specified time  was  insufficient,*®  but  it  is  now  settled  that  a  promise 
of  forbearance  need  not  be  a  promise  of  absolute  forbearance,  nor 
even  of  forbearance  for  a  definite  time.  Where  no  time  is  mention- 
ed, a  reasonable  time  will  be  implied,  or,  at  any  rate,  where  there 
is  a  promise  to  forbear,  and  actual  forbearance  for  a  reasonable 
time,  it  is  enough.®** 

Ind.  286,  20  N.  E.  796.  See  "Contracts;'  Dec.  Dig.  {Eey-No.)  §  71;  Cent.  Dig. 
§§  295-S2Ji. 

85  Smith  V.  Monteith,  13  Mees.  &  W.  427.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  71;   Cent.  Dig.  §§  2.05-32^. 

8  8  Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631,  2  L.  R.  A.  734,  7  Am. 
St.  Rep.  769;  Erie  Co.  Sav.  Bank  v.  Coit,  104  N.  Y.  532,  11  N.  E.  54.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  71;  Cent.  Dig.  §§  20-^-324. 

8T  Manter  v.  Churchill,  127  Mass.  31.  And  see  Mecorney  v.  Stanley,  8  Cush. 
(Mass.)  85;  Shadbume'v.  Daly,  76  Cal.  355,  IS  Pac.  403.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  73;   Cent.  Dig.  §§  326,  327. 

88  Crears  v.  Hunter,  19  Q.  B.  Div.  341.  And  see  Strong  v.  Sheffield,  144  N. 
Y.  392,  39  N.  E.  330 ;  Waters  v.  White,  75  Conn.  88,  52  Atl.  401 ;  Standard 
Supply  Co.  V.  Per.son,  70  S.  E.  745,  154  N.  C.  456  (where  this  doctrine  is  said  to 
be  supported  by  the  weight  of  authority).  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  7^;   Cent.  Dig.  §§  S26,  327. 

8  9  Semple  v.  Pink,  1  Exch.  74.  See  Payne  v.  Wilson,  7  Barn.  &  C.  423.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  71;    Cent.  Dig.  §§  2D5-S2Jf. 

»o  Oldershaw  v.  King,  2  Hurl.  &  N.  399.  517;  Alliance  Bank  v.  Broom,  2 
Drew.  &  S.  289;  Howe  v.  Taggart,  133  Mass.  284;  Elting  v.  Vanderlyn,  4 
Johns.  (N.  Y.)  237;  Bowen  v.  Tipton,  64  Md.  275,  1  Atl.  861;  Calkins  v. 
Chandler,  36  Mich.  320,  24  Am.  Rep.  593 ;  Moore  v.  McKenney,  83  Me.  SO,  21 
Atl.  749,  23  Am.  St.  Rep.  753;  Foard  v.  Grinter's  Ex'rs  (Ky.)  18  S.  W.  1034; 
Traders'  Nat.  Bank  t.  Parker,  130  N.  Y.  415,  29  N.  E.  1094;  Citizens'  Sav. 
Bank  &  Trust  Co.  v.  Babbitts'  Estate,  71  Vt.  182,  44  Atl.  71;  McMicken  v. 
Safford,  197  111.  540,  64  N.  E.  540.  But  see  Garnett  v.  Kirkman,  33  Miss.  389; 
Clark  v.  Russel,  3  Watts  (Pa.)  213,  27  Am.  Dec.  34a  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §§  212,  213;    Cent.  Dig.  §§  950,  962. 


§§    71-73)  FORBEABANCE    TO    EXERCISE    A    BIGHT  153 

forbearance  to  Dp  What  One  Cannot  Legally  Do 

It  is  no  consideration  for  a  promise  for  a  man  to  forbear  or  to 
promise  to  forbear  from  doing  what  he  is  not  legally  entitled  to 
do.®^  This  proposition  would  seem  to  be  obvious,  but  questions 
have  arisen  in  its  application,  and  have  given  rise  to  some  conflict 
in  the  decisions. 

Some  applications  of  the  principle  are  clear.  A  forbearance  or 
promise  to  forbear,  for  instance,  from  claims  under  an  illegal  con- 
tract, such  as  a  gambling  contract,  or  a  contract  involving  the  com- 
mission of  crime,  can  form  no  consideration  for  the  promise  of  the 
other  party,  since  the  contract  is  void,  and  could  not  be  enforced. ^^ 
So,  also,  the  release  of  a  debtor  from  imprisonment  was  held  to  be 
no  consideration  for  a  promise  where,  by  the  previous  release  of  a 
codebtor,  the  debt  had  been  discharged,  since  the  imprisonment  was 
therefore  unlawful.®^  So  a  promise  to  pay  rent,  made  solely  to 
prevent  an  unlawful  eviction,  is  without  consideration.®* 

As  a  general  rule,  it  is  safe  to  say  that,  in  order  that  forbearance 
to  exercise  a  right  may  constitute  a  consideration,  the  right  must 
be  at  least  doubtful.  Forbearance  to  insist  upon  a  claim  that  is 
clearly  unenforceable,  at  least  if  it  be  known  to  the  claimant  to  be 
such,  cannot  be  a  consideration. 

Compromise 

A  common  form  in  which  a  forbearance  appears  as  the  consider- 
ation for  a  promise  is  in  the  settlement  or  compromise  of  a  disputed 

91  In  Barnard  v.  Simons  (1616)  1  Rolle,  Abr.  26,  Langd.  Cas.  Cont.  194,  it 
was  said  tbat  "if  A.  makes  a  void  assumpsit  to  B.,  and  afterwards  a  stran- 
ger comes  to  B.,  and,  in  consideration  that  B.  will  relinquish  the  assumpsit 
made  to  him  by  A.,  he  promises  to  pay  him  £10,  this  is  not  a  good  considera- 
tion to  charge  him,  because  the  first  assumpsit  was  void."  See  Palfrey  v. 
Railroad  Ck).,  4  Allen  (Mass.)  55 ;  Shuder  v.  Newby,  85  Tenn.  348,  3  S.  W.  438 ; 
Clark  V.  Jones,  85  Ala.  127,  4  South.  771;  Sharpe  v.  Rogers,  12  Minn.  174  (Gil. 
103) ;  Harris  v.  Cassady,  107  Ind.  15S,  8  N.  E.  29 ;  Eeker  v.  McAllister,  54 
Md.  369;  Schroeder  v.  Fink,  60  Md.  438;  Long  v.  Towl,  42  Mo.  545,  97  Am. 
Dec.  355;  Martin  v.  Black,  20  Ala.  309;  Prater  v.  Miller,  25  Ala.  320,  60  Am. 
Dec.  521;  Davisson  v.  Ford,  23  W.  Va.  617;  Eblin  v.  Miller's  Ex'rs,  78  Ky.  371. 
Many  of  these  cases,  however,  in  conflict  with  what  is  the  prevailing  rule, 
maintain  that  forbearance  to  sue  on  an  invalid  claim,  though  honestly  be- 
lieved in,  is  no  consideration.  Post,  p.  155.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  72;   Cent.  Dig.  §  325. 

8  2  Everingham  v.  Meighan,  55  Wis.  354,  13  N.  W.  269.  See  •'Contracts,"  Dec. 
Dig.  (Key-yo.)  §  72;   Cent.  Dig.  §  S25. 

93  Herring  v.  Dorell,  8  Dowl.  Pr.  Cas.  604.  See  "Contracts,"  Dec.  Dig.'iKey- 
So.)  %  72;    Cent.  Dig.  §  S25. 

»4  Smith  V.  Coker,  110  Ga.  654,  36  S.  E.  107 ;  Tolhurst  v.  Powers,  133  N.  Y. 
460,  31  X.  R.  326  (surrender  of  what  promisee  has  no  right  to  retain).  See 
^Contracts,"  Dec.  Dig.  (Keg-No.)  §  72;   Cent.  Dig.  §  S25. 


154  CONSIDERATION  (Ch.  5 

claim.  Forbearance  by  a  person  to  insist  upon  a  demand,  or  to 
prosecute  an  action  which  he  has  commenced,  is,  subject  to  excep- 
tions to  be  presently  explained,  a  sufficient  consideration.^'  Illus- 
trations are  furnished  by  cases  in  which  one  party  makes  a  claim 
or  demand  on  another,  and  the  latter  disputes  it,  whereupon  they 
settle  the  dispute  by  a  compromise,  or  by  agreeing  upon  the  amount 
due  in  an  account  stated.  Likewise  a  compromise  will  support  a 
promise  by  a  third  party. '° 

The  authorities  are  all  agreed  that  the  promisee  must  believe  in 
his  claim,  or  in  his  action;  and  that  forbearance  to  sue  on  a  de- 
mand known  by  him  to  be  unenforceable,  or  to  proceed  in  an  action 
knowingly  brought  without  cause,  is  no  consideration. ^'^  It  is  also 
well  settled  tliat  the  mere  fact  that  the  claim  was  invalid  or  un- 
enforceable does  not  prevent  its  surrender  from  constituting  a  good 
consideration  if  the  claim  was  a  doubtful  one  in  regard  to  the  va- 
lidity of  which  there  was  reasonable  ground  for  difference  of  opin- 
ion.®'   When  we  reach  this  point,  the  difficulty  begins." 

8  5  SMITH  V.  FARRA,  21  Or.  395,  28  Pac.  241,  20  L.  R.  A.  115,  Throckmor- 
ton Cas.  Contracts,  109 ;  McKinley  v.  Watkins,  13  111.  140 ;  Cook  v.  Wright,  1 
Best  &  S.  559 ;  Callisher  v.  Bischoffsheim,  L.  R.  5  Q.  B.  449 ;  McClellan  v. 
Kennedy,  8  Md.  247 ;  Longridge  v.  Dorville,  5  Barn.  &  A.  117 ;  Jones  v.  Rit- 
teuhouse,  87  Ind.  348 ;  Fisher  v.  May's  Heirs,  2  Bibb  (Ky.)  448,  5  Am.  Dec. 
626 ;  Hennessy  v.  Bacon,  137  U.  S.  85,  11  Sup.  Ct.  17,  34  L.  Ed.  605 ;  Sisson 
V.  City  of  Baltimore,  51  Md.  83 ;  Crowther  v.  Farrer,  15  Q.  B.  677 ;  Nash  v. 
Armstrong,  10  C.  B.  (N.  S.)  259 ;  Heffelfinger  v.  Hummel,  90  Iowa,  311,  57  N. 
W.  872;  McClure  v.  McClure,  100  Cal.  339,  34  Pac.  822.  The  suit  need  not 
be  actually  discontinued  before  suit  on  the  promise.  The  agreement  ends  it. 
Phillips  V.  PuUen,  50  N.  J.  Law,  439,  14  Atl.  222;  Van  Campen  v.  Ford,  53 
Hun,  636,  6  N.  Y.  Supp.  139;  Rappanier  v.  Banuon  (Md.)  8  Atl.  555.  See 
"Compromise  and  Settlement,"  Dec.  Dig.  {Key-No.)  §  6;  Cent.  Dig.  §§  $5-50; 
•'Contracts,"  Cent.  Dig.  §  S29. 

96  Bane's  Case  (1611)  9  Coke,  93b.  Withdrawal  of  a  suit  against  a  person, 
for  instance,  will  support  his  father's  note.  Mascolo  v.  Montesanto,  61  Conn. 
50,  23  Atl.  714,  29  Am.  St  Rep.  170.  See  "Compromise  and  Settlement,"  Dec. 
Dig.  (Key-Xo.)  §  6;   Cent.  Dig.  §§  S5-50;    "Contracts,"  Cent.  Dig.  §  S29. 

97  Wade  V.  Simeon,  2  C.  B.  548;  McKinley  v.  Watkins,  13  111.  140;  Rood  v. 
Jones,  1  Doug.  (Mich.)  188;  McGlynn  v.  Scott,  4  N.  D.  18,  58  N.  W.  460; 
Phillips  V.  Pullen.  50  N.  J.  Law,  439,  14  Atl.  222 ;  Von  Brandenstein  v.  Ebens- 
berger,  71  Tex.  267,  9  S.  W.  153 ;  Demars  v.  Manufacturing  Co.,  37  Minn.  418, 
35  N.  W.  1;  Taylor  v.  Weeks,  129  Mich.  233,  88  N.  W.  466.  See  "Compromise 
and  Settlement,"  Dec.  Dig.  (Key-No.)  §  6;  Cent.  Dig.  §§  S5-50;  "Contrarts," 
Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§  S2S-S30. 

98  SMITH  V.  FARRA,  21  Or.  395,  28  Pac.  241,  20  L.  R.  A.  115.  Throckmor- 
ton Cas.  Contracts,  109 ;  Grandin  v.  Grandin,  49  N.  J.  Law,  508.  9  Atl.  756, 
60  Am.  Rep.  642 ;  Dunham  v.  Griswold,  100  N.  Y.  224,  3  N.  E.  70 ;  Kome  v. 
Korne,  30  W.  Va.  1,  3  S.  E.  17;  Neibles  v.  Railway  Co.,  37  Minn.  151,  33  N. 
W.  332 ;   Honeyman  v.  Jarvis,  79  111.  318 ;    Potts  v.  Polk  Co.,  80  Iowa,  401,  45 


9  9  See  cases  cited  infra,  notes  1-5. 


§§    71-73)  FORBEARANCE   TO    EXERCISE    A    RIGHT  155 

In  some  jurisdictions,  the  compromise  is  said  to  be  void  for  want 
of  consideration  unless  there  was  actual  doubt  as  to  the  validity  of 
the  promisee's  claim. ^  According  to  these  authorities,  belief  by 
the  promisee  in  the  existence  of  a  good  claim  is  not  sufficient,  if 
in  fact  there  was  no  reasonable  ground  for  his  belief. 

In  England,^  however,  and  by  the  weight  of  authority  in  this 
country,^  the  compromise  is  upon  sufficient  consideration  if  the 
promisee  surrenders  a  claim  made  by  him  in  good  faith,  even  though 
the  claim  was  unenforceable  and  there  was  no  reasonable  ground 
for  his  belief  in  its  validity.  In  a  leading  English  case  it  was  said: 
"If  he  bona  fide  believes  he  has  a  fair  chance  of  success,  he  has  a 
reasonable  ground  for  suing,  and  his  forbearance  to  do  so  will  con- 
stitute a  good  consideration.  When  such  a  person  forbears  to  sue, 
he  gives  up  what  he  believes  to  be  a  right  of  action,  and  the  other 
party  gets  an  advantage,  and,  instead  of  being  annoyed  with  an 
action,  he  escapes  from  the  vexations  incident  to  it.  *  *  *  It 
would  be  another  matter  if  a  person  made  a  claim  which  he  knew 
to  be  unfounded,  and  by  a  compromise  derived  an  advantage  under 
it;   in  that  case  his  conduct  would  be  fraudulent."  *    And  in  a  later 

N.  W.  775 ;  Prout  v.  Plttsfielcl  Fire  Dist.,  154  Mass.  450,  28  N.  E.  G79 ;  Dovale 
V.  Ack'ermann,  2  App.  Div.  404,  37  N.  Y.  Supp.'  959.  See  "Compromise  and  Set- 
tlement;' Dec.  Dig.  (Key-No.)  §  6;  Cent.  Dig.  §§  35-50;  ''Contracts;'  Cent. 
Dig.  §  S29. 

1  Mulholland  v.  Bartlett,  74  111.  58  ;  Bates  v.  Sandy,  27  111.  App.  552 ;  United 
States  Mortgage  Co.  v.  Henderson,  111  lud.  24,  12  N.  E.  88 ;  Russell  v.  Wright, 
98  Ala.  6.52,  13  South.  594;  Fink  v.  Smith,  170  Pa.  124,  32  Atl.  560,  50  Am. 
St.  Rep.  750;  Palfrey  v.  Railroad  Co.,  4  Allen  (Mass.)  55;  Schroeder  v.  Fink, 
60  Md.  436 ;  Emmittsburg  R.  Co.  v.  Donoghue,  67  Md.  383,  10  Atl.  233,  1  Am. 
St.  Rep.  39G ;  Davisson  v.  Ford,  23  W.  Va.  613 ;  Cline  v.  Templeton,  78  Ky. 
550 ;  Gunning  v.  Royal,  59  Miss.  45,  42  Am.  Rep.  350 ;  Price  v.  Bank,  62  Kan. 
743,  64  Pac.  639.  See  ''Compromise  and  Settlement;'  Dec.  Dig.  (Key-No.)  §  6; 
Cent.  Dig.  §§  35-50;  "Contracts;'  Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig.  §§  328- 
330. 

2  See  cases  cited  infra,  notes  4,  5. 

3  SMITH  V.  FARRA,  21  Or.  395,  28  Pac.  241,  20  L.  R.  A.  115,  Throckmorton 
Cas.  Contracts,  109 ;  Crans  v.  Hunter,  28  N.  Y.  3S9 ;  Zoebisch  v.  Von  Minden, 
120  N.  Y.  406,  24  N.  E.  795 ;  Grandin  v.  Grandin,  49  N.  J.  Law,  508,  9  Atl.  756, 
60  Am.  Rep.  642;  Rue  v.  Meirs,  43  N.  J.  Eq.  377,  12  Atl.  369;  Bellows  v. 
Sowles,  55  Vt  391,  45  Am.  Rep.  621 ;  Hewett  v.  Currier,  63  Wis.  386,  23  N. 
W.  884;  Appeal  of  Gormley,  130  Pa.  467,  18  Atl.  727;  Hansen  v.  Gaar,  Scott 
&  Co.,  63  Minn.  94,  65  N.  W.  2.54;  Di  lorio  y.  Di  Brasio,  21  R.  I.  208,  42  Atl. 
1114;  Hanchett  v.  Ives,  171  111.  122,  49  N.  E.  206;  Rowe  v.  Barnes,  101  Iowa, 
302,  70  N.  W.  197;  GALUSHA  v.  SHERMAN,  105  Wis.  2(!3,  81  N.  W.  495,  47 
L.  R.  A.  417,  Throckmorton,  Cas.  Contracts,  200.  See  "Compromise  and  Set- 
tlement;' Dec.  Dig.  (Key-No.)  §  G;  Cent.  Dig.  §§  35-50;  "Contracts;'  Cent.  Dig. 
§  32D. 

*Callisher  v.  Bischoffsheim,  L.  R.  5  Q.  B.  449.  See,  also,  Cook  v,  Wright,  1 
B.   &  S.  559.     See  "Compromise  and  Settlement;'  Dec  Dig.  (Key-No.)   §  6; 


156  CONSIDERATION  (Ch.  5 

case  it  was  said:  "If  there  is  in  fact  a  serious  claim  honestly  made, 
the  abandonment  of  the  claim  is  a  good  consideration.  *  *  » 
Now,  by  'honest  claim,'  I  think  is  meant  this :  that  a  claim  is  hon- 
est if  the  claimant  does  not  know  that  his  claim  is  unsubstantial, 
or  if  he  does  not  know  facts,  to  his  knowledge  unknown  to  the 
other  party,  which  show  that  his  claim  is  a  bad  one."  ^  These  cases 
thus  allow  the  whole  question  to  depend  on  the  good  faith  of  the 
party  forbearing,  without  any  regard  whatever  to  the  validity  of 
his  claim. 

Admitting  that  forbearance  from  what  one  is  not  legally  entitled 
to  do  is  no  consideration,  it  may  be  said  that  one  has  a  right  to  as- 
sert or  litigate  a  claim  in  which  he  believes,  and  that  forbearance 
from  this  right  is  a  consideration. 

SAME— DOING  WHAT  ONE  IS  BOUND  TO  DO 

74.  IN  GENERAL.  Doing  or  promising  what  one  is  already  le- 

gally bound  to  do  is,  as  a  rule,  no  consideration.  Such 
previous  obligation  may  arise 

(a)  By  virtue  of  a  prior  contract,  or 

(b)  By  law,  independently  of  contract. 

75.  ADDITIONAL  COMPENSATION,    In  some  jurisdictions,  a 

promise  to  perform,  or  performance  of,  an  existing  con- 
tract, is  held  to  be  consideration  for  a  promise  by  the  oth- 
er party  to  pay  additional  compensation;  and  in  some 
jurisdictions  such  promise  to  perform  or  performance  is 
held  to  be  consideration  for  a  promise  by  a  third  person 
to  pay  additional  compensation. 

76.  PART  PAYMENT  IN  SATISFACTION  OF  DEBT.    Under 

the  general  rule,  payment  of  part  of  a  debt  is  no  consid- 
eration for  a  discharge  of  the  debt. 

Another  form  of  unreality  of  consideration  is  where  the  alleged 
consideration  is  a  promise  to  do,  or  actually  doing,  what  a  person 
is  alread}^  bound  to  do.  The  promisor  gets  no  more  in  return  for 
his  promise  than  the  promisee  was  already  bound  to  give,  and 
therefore  receives  no  consideration.^     Such  prior  obligation  may 

Cent.  Dig.  §§  S5-50;  "Contracts,"  Dec.  Dig.  (Key-No.)  §  68;  Cent.  Dig.  §J 
S2S-3S0. 

6  Miles  V.  New  Zealand,  etc.,  Co.,  32  Ch.  D.  266,  per  Cotton,  L.  J.  See 
"Compromise  and  Settlement,"  Dec.  Dig.  {Key-'No.)  §  6;  Cent.  Dig.  §§  35-50; 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  6S;    Cent.  Dig.  §§  328-330. 

6  Conover  v.  Stillwell,  34  N.  J.  Law,  54;  Jennings  v.  Chase,  10  Allen. (Mass.) 
526 ;    Warren  v.  Hodge,  121  Mass,  106 ;    Schuler  v,  Myton,  48  Kan.  2S2,  29 


§§    74-76)  DOING    WHAT   ONE    IS    BOUND   TO    DO  157 

arise  (1)  from  a  previous  contract,  or  (2)  from  law,  independently 
of  contract. 

Where,  for  instance,  a  seaman  deserted  a  vessel,  and  the  captain 
promised  the  rest  of  the  crew  extra  pay  if  they  would  work  the 
vessel  home,  the  promise  was  held  to  be  without  consideration, 
because  the  seamen  had,  before  sa^iling,  agreed  to  do  all  they  could 
under  all  the  emergencies  of  the  voyage,  and  the  desertion  by  some 
of  the  seamen  was  an  emergency.  Here  the  seamen  promised  no 
more  than  their  contract  bound  them  to  do.^  Where  a  public 
ofificer  is  required  by  law  to  make  an  arrest,  a  promise  by  an  in- 
dividual to  pay  him  for  doing  so  is  without  consideration ;  *  and 
so  it  is  with  a  promise  to  pay  a  public  officer  or  a  witness  extra 

Pac.  163 ;  Holmes  v.  Boyd,  90  Ind.  332 ;  Keffer  v.  Grayson,  76  Va.  517,  44 
Am.  Rep.  171 ;  Harris  v.  Cassaday,  107  Ind.  158,  8  N.  E.  29 ;  Stuber  v.  Schack, 
S3  111.  191;  Phcenix  Ins.  Co.  v.  Rink,  110  111.  538;  Harriman  v.  Harriman, 
12  Gray  (Mass.)  341;  Tucker  v.  Bartle,  85  Mo.  114;  Eblin  v.  Miller's  Ex'rs, 
78  Ky.  371;  Sherwin  v.  Brigham,  39  Ohio  St.  137;  Watts  v.  Frenche,  19 
N.  J.Eq.  407;  Bush  v.  Rawlins,  89  Ga.  117,  14  S.  B.  886;  Jenness  v.  Lane,  26 
Me.  475;  Wendover  v.  Baker,  121  Mo.  273,  25  S.  W.  918;  Arend  v.  Smith, 
151  N.  Y.  502,  45  N.  E.  872 ;  Allen  v.  Plasmeyere,  3  Neb.  (Unof.)  187',  90  N.  W. 
1125;  Barringer  v.  Ryder,  119  Iowa,  121,  93  N.  W.  56;  Wescott  v.  Mitchell,  95 
Me.  377,  50  Atl.  21.  On  this  principle,  a  promise  by  a  creditor  after  maturity 
of  the  debt,  to  extend  the  time  of  payment,  is  not  binding  unless  some  collat- 
eral consideration  is  received.  Hoffman  v.  Coombs,  9  Gill  (Md.)  284;  Turn- 
bull  V.  Brock,  31  Ohio  St.  649;  Pfeiffer  v.  Campbell,  111  N.  Y.  631,  19  N.  E. 
498 ;  Holmes  v.  Boyd,  90  Ind.  332 ;  Ives  v.  Bosley,  35  Md.  202,  6  Am.  Rep.  411 ; 
Helms  V.  Crane,  4  Tex.  Civ.  App.  89,  23  S.  W.  392;  Skinner  v.  Mining  Co. 
(C.  C.)  96  Fed.  735.  A  promise  to  extend  in  consideration  of  a  promise  to  pay 
the  debt  with  interest  at  the  same  rate  is  without  consideration.  Kellogg  v. 
Olmsted,  25  N.  Y.  189;  Olmstead  v.  Latimer,  158  N.  Y.  313,  53  N.  E.  5,  43  L 
R.  A.  685;  Wilson  v.  Powers,  130  Mass.  127;  Holmes  v.  Boyd,  90  Ind.  332; 
Price  V.  Mitchell,  23  Wash.  742,  63  Pac.  514. 

It  has  been  held,  however,  that  a  promise  to  extend  is  supported  by  a 
'  promise  to  pay  interest  at  the  same,  or  even  a  less  rate,  for  a  certain  time, 
since  the  debtor  foregoes  his  right  to  pay  before  that  time.  Fawcett  v.  Fresh- 
water, 31  Ohio  St.  637 ;  Fowler  v.  Brooks,  13  N.  H.  240 ;  Simpson  v.  Evans, 
44  Minn.  419,  46  N.  W.  908.  See,  also,  Moore  v.  Redding,  69  Miss.  841,  13 
South.  849.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  75;   Cent.  Dig.  §§  273-2S5. 

7  Stilk  V.  Meyriek,  2  Camp.  317.  See,  also,  Harris  v.  Carter,  3  El.  &  Bl. 
550 ;  Rartlett  v.  Wyman,  14  Johns.  (N.  Y.)  260 ;  Vanderbilt  v.  Schreyer,  91  N. 
Y.  392.  It  would  have  been  different  if  risks  had  arisen  which  were  not  con- 
templated by  the  contract  For  instance,  such  a  contract  as  in  the  case  cited 
contains  an  implied  warranty  that  the  ship  shall  be  seaworthy.  So,  where  a 
seaman  had  signed  articles  of  agreement  to  navigate  a  vessel,  and  the  vessel 
proved  unseaworthy,  a  promise  of  extra  pay  to  induce  him  to  abide  by  his 
contract  was  held  binding.  Turner  v.  Owen,  3  Fost.  &  F.  177.  See  "Com- 
tracts,"  Dec.  Dig.  (Key-No.)  §  75;   Cent.  Dig.  §§  273-285. 

8  Smith  V.  Whildin,  10  Pa.  39,  49  Am.  Dec.  572 ;  Ilogan  v.  Stophlet,  179  111. 
150,  53  N.  E.  604,  44  L.  R.  A.  809.  See  post,  p.  .•.52.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  75;    Cent.  Dig.  §§  273-2S5. 


158  CONSIDERATION  (Ch.  5 

compensation  for  performing  services  for  which  his  fees  are  fixed 
by  law.®  In  these  cases  the  officer  or  witness  does  no  more  than 
he  is  required  by  law  to  do,  and  therefore  gives  no  consideration. 
Of  course,  it  is  otherwise  with  agreements  to  pay  officers  for  doing 
something  beyond  the  scope  of  their  official  duties.^"  The  doctrine 
also  applies  to  a  promise  to  do  ©r  doing  what  one  may  be  com- 
pelled to  do  in  equity.^^  It  will  be  seen  from  the  cases  mentioned 
that  the  actual  performance  of  that  which  a  man  is  legally  bound 
to  do  stands  on  the  same  footing  as  his  promise  to  do  what  he  is 
legally  compellable  to  do. 

The  rule  above  stated  would  seem  to  be  an  obvious  result  of  the 
doctrine  of  consideration,  but  some  of  its  applications  have  met 
with  severe  criticism,  and  there  is  much  direct  conflict  in  the 
decisions  on  the  subject. 

Mutual  Discharge  and  Substituted  Agreement — Additional  Compen- 
sation 
In  the  case  of  a  contract  which  is  wholly  executory, — that  is, 
a  contract  in  which  there  is  something  to  be  done  on  both  sides, 
— it  can,  as  we  shall  see  in  treating  of  discharge  of  contract,  be 
discharged  by  mutual  consent.  The  acquittance  of  each  from  the 
other's  claims  in  such  a  case  is  the  consideration  of  each  to  waive 
his  own.^^  If  parties  can  so  discharge  the  contract,  it  follows 
that  they  may  substitute  a  new  contract  in  its  place.  Suppose, 
however,  that  one  of  the  parties  to  a  contract  refuses  to  perform, 
because  he  finds  that  he  must  suffer  a  loss  by  performance;  and 
suppose  the  other  party  wishes  performance,  and  requires  it  to 
prevent  serious  loss.  Would  a  promise,  made  by  him  in  order  to 
induce  the  other  to  perform,  of  more  than  he  was  liable  to  pay 
or  do  under  the  original  contract,  be  binding,  or  would  it  be  void, 
on  the  ground  that  the  only  consideration  for  it  is  the  promise  by 
the  other  to  perform  the  original  contract, — a  thing  which  he  was 
already  bound  to  do?  The  courts  differ  in  their  answers  to  this 
question.^* 

9  See  Lucas  ▼.  Allen,  80  Ky.  681;  Hatch  v.  Mann,  15  Wend.  (N.  Y.)  45. 
Since  a  witness,  however,  cannot  be  compelled  to  attend  in  another  state,  a 
party's  promise  of  extra  compensation  to  induce  him  to  attend  is  binding. 
Armstrong  v.  Prentice,  86  Wis,  210,  56  N.  W.  742.  See  ''Contracts,"  Dec.  Dig. 
(Key-^'o.)  §  75;   Cent.  Dig.  §§  273-285. 

10  England  v.  Davidson,  11  Adol.  &  E.  856;  McCandless  v.  Steel  Co.,  152 
Pa.  139,  25  Atl.  579;  Studley  v.  Ballard,  169  Mass.  295,  47  N.  E.  1000.  61  Am. 
St.  Rep.  286.    See  "Contracts"  Dec.  Dig.  (Key-No.)  §  75;  Cent.  Dig.  §§  273-285. 

11  Robinson  v.  Jewett,  116  N.  Y.  40,  22  N.  E.  224.  See  "Contracts"  Dec. 
Dig.  (Key -No.)  §  75;   Cent.  Dig.  §§  213-285. 

12  Post,  p.  526.  ^'  S^e  infra,  notes  14-17. 


g§    74-76)  DOING    WHAT    ONE    IS   BOUND   TO    DO  159 

Some  courts  hold,  in  accordance  with  the  general  rule,  that  the 
promise  of  extra  compensation  is  without  consideration  and  void.^* 
In  some  of  these  jurisdictions,  however,  an  exception  has  been 
recognized  where  the  new  promise  is  made  on  account  of  unfore- 
seen and  substantial  difficulties  in  the  performance  of  the  con- 
tract/* In  the  language  of  the  leading  case  recognizing  the  ex- 
ception/* "where  the  party  refusing  to  complete  his  contract  does 
so  by  reason  of  some  unforeseen  and  substantial  difficulties  in  the 
performance  of  the  contract,  which  were  not  known  or  anticipated 
by  the  parties  when  the  contract  was  entered  into,  and  which 
cast  upon  him  an  additional  burden  not  contemplated  by  the  par- 
ties, and  the  opposite  party  promises  him  extra  pay  for  benefits 
if  he  will  complete  his  contract,  and  he  so  promises,  the  promise 
to  pay  is  supported  by  a  valid  consideration.  Ln  such  a  case  the 
natural  inference  arising  from  the  transaction,  if  unmodified  by 
any  equitable  considerations,  is  rebutted,  and  the  presumption 
arises  that  by  the  voluntary  and  mutual  promises  of  the  parties 
their  respective  rights  and  obligations  under  the  original  contract 
are  waived,  and  those  of  the  new  or  modified  contract  substituted 
for  them." 

Other  courts  hold  outright  that,  even  v/here  there  is  nothing 
more  than  refusal  on  the  part  of  one  party  to  perform,  a  new  agree- 
ment, in  which  the  other,  to  induce  him  not  to  break,  but  to  go 
on  with,  his  contract,  promises  to  pay  him  a  larger  sum  than  orig- 
inally promised,  at  least  if  it  is  in  substitution  of  the  original 
contract,  is  binding.^^     Some  of  these  courts  base  their  decision 

14  KING  V.  RAILWAY  CO.,  Gl  Minn.  482,  63  N.  W.  1105,  Throckmorton  Cas. 
Contracts,  115 ;  Vanderbilt  v.  Schreyer,  91  N.  Y.  392 ;  Reynolds  v.  Nugent,  25 
Ind.  328;  Erb  v.  Brown,  69  Pa.  216;  Ayres  v.  Railway  Co.,  52  Iowa,  478, 
3  N.  W.  522 ;  McCarthy  v.  Association,  61  Iowa,  287,  16  N.  W.  114 ;  Cobb  v. 
Cowdery,  40  Vt.  25,  94  Am.  Dec.  370;  Keith  v.  Miles,  39  Miss.  442,  77  Am. 
Dec.  685;  Gaar,  Scott  &  Co.  v.  Green,  6  N.  D.  48.  68  N.  W.  318;  Jones  v.  Ris- 
ley,  91  Tex.  1,  32  S.  W.  1027 ;  Main  St.  &  A.  P.  R.  Co.  v.  Traction  Co.,  129 
CaL  301,  61  Pac.  937 ;  Westcott  v.  Mitchell,  95  Me.  377,  50  Atl.  21 ;  Alaska 
Packers'  Ass'n  v.  Domenico,  117  Fed.  99,  54  C.  C.  A.  485;  Lingenfelder  v. 
Brewing  Co.,  103  Mo.  578,  15  S.  W.  844.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§§  2S1,  2Jt.'t;    Cent.  Dig.  §§  1119-1122,  112S. 

16  KING  V.  RAILWAY  CO.,  01  Minn.  482,  63  N.  W.  1105,  Throckmorton 
Cas.  Contracts,  115 ;  Linz  v.  Schuck,  106  Md.  220,  67  Atl.  286,  11  L.  R.  A.  (N. 
S.)  789  and  note,  124  Am.  St.  Rep.  481,  14  Ann.  Cas.  495  and  note;  Meech  v. 
City  of  Buffalo,  29  N.  Y.  198.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  75,  237; 
Cent.  Dig.  §§  273-285,  1119-1122. 

16  KING  V.  RAILWAY  CO.,  61  Minn.  482,  63  N.  W.  1105,  Throckmorton, 
Cas.  Contracts,  115,  per  Start,  C.  J.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§ 
75,  237;    Cent.  Dig.  §§  213-^85,  11 19-1123. 

IT  Muuroe  v.  Perkins,  9  Pick.  (Mass.)  298,  20  Am.  Dec.  475;   Rollins  v.  Marsh, 


160  CONSIDERATION  (Ch.  5 

on  the  ground  that  a  person  who  has  entered  into  a  contract  is 
entitled  to  choose  between  going  on  with  it  at  a  loss  and  the 
risk  of  an  action  by  the  other  party  for  the  breach.  This  might 
be  a  sound  doctrine  if  a  contract  were,  according  to  Mr.  Justice 
O.  W.  Holmes,  Jr.'s,^*  conception  of  it,  the  mere  taking  of  a  risk; 
that  is,  if  a  party  must  be  held  to  contemplate,  when  he  gives 
a  promise,  not  its  performance,  but  the  payment  of  damages  for 
its  breach,  or  performance,  at  his  option,  according  as  the  one  or 
the  other  may  seem  the  more  to  his  interest  in  the  light  of  future 
developments.  Such,  however,  does  not  seem  the  proper  concep- 
tion of  contract.  Certainly,  as  a  rule,  when  a  man  makes  a  con- 
tract, he  does  so  with  the  intention  of  performing  it,  and  with  the 
expectation  of  performance  by  the  other  party.  If  cannot  be  that 
a  contract  is  nothing  more  than  a  mere  gambling  transaction — 
a  mere  bet  on  its  performance.  To  allow  a  man  who  has  prom- 
ised, on  a  sufficient  consideration,  to  repudiate  his  promise  when 
he  finds  that  he  is  to  suffer  loss,  and  force  the  other  party  to 
pay  an  additional  sum  in  order  to  obtain  what  he  is  already 
entitled  to,  encourages  breach  of  contract  and  breach  of  faith. 

Promise  to  Third  Person,  to  Perform  Existing  Contract 

In  England  and  Massachusetts  it  has  been  held  that  if  a  man 
is  bound  by  a  contract  to  do  a  particular  thing,  and,  while  it  is 
doubtful  whether  he  will  do  it,  a  third  person  promises  to  pay 
hirrb  if  he  will  do  it,  his  performance  will  constitute  a  sufficient 
consideration  for  the  third  party's  promise.^ ^  It  is  difficult,  if 
not  impossible,  to  reconcile  such  a  case  with  the  general  rule 
which  we  have  stated,  or  to  find  any  reason  for  such  an  exception. 
In  this  country  the  contrary  has  been  generally  held.-** 

128  Mass.  116;  Osborne  v.  O'Reilly,  42  N.  J.  Eq.  467,  9  Atl.  209;  Moore  v. 
Locomotive  Works,  14  Mich.  266 ;  Goebel  v.  Linn,  47  Mich.  4S9,  11  N.  W.  284, 
41  Am.  Rep.  723;  Coyner  v.  Lynde,  10  Ind.  282;  Cooke  v.  MuiTOhy,  70  111.  96 
(but  see  Moran  v.  Peace,  72  111.  App.  135) ;  Connelly  v.  Devoe,  37  Conn.  570 ; 
Lawrence  v.  Davey,  28  Vt.  264;  Lattimore  v.  Harsen,  14  Johns.  (N.  Y.)  330; 
Foley  V.  Storrie,  4  Tex.  Civ.  App.  377,  23  S.  W.  442  ;  Scaulon  v.  Noilhwood, 
147  Mich.  139,  110  N.  W.  493;  Courtenay  v.  Fuller,  65  Me.  156.  See  ''Con- 
tracts," Dec.  Dig.  (Key-No.)  §§  75,  257;    Cent.  Dig.  §§  273-2S5,  1119-1122. 

18  Holmes,  The  Common  Law,  301. 

18  ShadweU  v.  Shadwell,  9  C.  B.  (N,  S.)  159;  Scotson  v.  Pegg,  6  Hurl.  &  N. 
295;  Abbott  v.  Doane,  ICS  Mass.  433,  40  N.  E.  197,  34  L.  R.  A.  33,  47  Am. 
St  Rep.  465 ;  Cf.  Grant  v.  Railway  Co.,  61  Minn.  395,  63  N.  W.  1026.  See  12 
Harv.  Law  Rev.  520.  See  "Contracts"  Dec.  Dig.  {Key-No.)  §  H;  Cent.  Dig. 
|§  SSlSJiS. 

2  0  Johnson's  Adm'r  v.  Sellers'  Adm'r,  33  Ala.  265;  Putnam  v.  Woodbury, 
-68  Me.  58;  L'Amoreux  v.  Gould,  7  N.  Y.  349,  57  Am.^  Dec.  524;  Peelman  v. 
Peelman,  4  Ind.  612 ;  Jlerrick  v.  Giddings,  1  Mackey  (12  D.  C.)  394 ;  Davenport 
Y.  Society,  83  Wis.  387 ;   Gordon  v.  Gordon,  56  N.  H.  170 ;   Hanks  v.  Barron,  93 


§§    74-76)  DOING    WHAT    ONE    IS    BOUND   TO    DO  161 

Part  Payment  in  Satisfaction  of  Debt 

Under  the  rule  we  have  been  discussing,  the  simple  payment  of 
a  smaller  sum  in  satisfaction  of  a  larger  is  not  a  good  discharge 
of  a  debt,  for  it  is  doing  no  more  than  the  debtor  is  already  bound 
to  do,  and  is  therefore  no  consideration  for  the  creditor's  promise 
to  forego  the  residue. ^^  If,  for  instance,  a  person  owes  another 
$1,000,  the  payment  of  which  may  be  demanded  at  once,  a  prom- 
ise by  the  creditor  to  take  $500  in  full,  and  its  payment,  will  not 
prevent  his  afterwards  recovering  the  other  $500. 

This  rule  is  well  established  and  continues  to  be  recognized 
by  the  courts.**  It  has,  however,  been  the  object  of  frequent  and 
severe  criticism,  as  failing  to  take  into  consideration  the  practical 
importance  of  the  difference  between  a  right  to  a  thing  and  the 
actual  possession  of  it,  and  as  serving  to  defeat  the  ends  of  justice 
and  common  honesty.**     This  general  feeling  as  to  the  injustice 

Tenn.  275,  32  S.  W.  195;  Havana  Press  Drill  Co.  v.  Ashurst,  148  111.  115,  35 
N.  E.  873.  See,  also,  Brownlee  v.  Lowe,  117  Ind.  420,  20  N.  E.  301.  See^ 
"Contracts,"  Dec.  Dig.  {Key-^o.)  §  II,;   Cent.  Dig.  §§  3S1-S1,S. 

21  Pinnel's  Case,  5  Coke,  117a ;  Cumber  v.  Wane,  1  Strange,  426,  1  Smith, 
Lead.  Cas.  439;  JAFFRAT  v.  DAVIS,  124  N.  Y.  164,  26  N.  E.  351,  11  L.  R. 
A.  710,  Throckmorton  Cas.  Contracts,  120  (collecting  cases) ;  Harriman  v.  Har- 
riman.  12  Gray  (Mass.)  341 ;  Bailey  v.  Day,  26  Me.  88 ;  Goodwin  v.  Follett. 
25  Vt.  386 ;  Barron  v.  Vandvert,  13  Ala.  232 ;  Hayes  v.  Insurance  Co.,  125  III. 
626,  18  N.  E.  322,  1  L.  R.  A.  303;  Harrison  v.  Close,  2  Johns.  (N.  Y.)  448,  3 
Am.  Dec.  444 ;  Bender  v.  Been,  78  Iowa,  283,  43  N.  W.  216,  5  L.  R.  A.  649 ; 
Leeson  v.  Anderson,  99  Mich.  247,  58  N.  W.  72,  41  Am.  St  Rep.  597 ;  Bryan  v. 
Foy.  69  N.  C.  45 ;  Carlton  v.  Railroad  Co.,  81  Ga.  531,  7  S.  E.  623 ;  Liening  v. 
Gould,  13  Cal.  598 ;  Watts  v.  Frenche,  19  N.  J.  Eq.  407 ;  Beaver  v.  Fulp,  136 
Ind.  595,  36  N.  E.  418;  Lankton  v.  Stewart,  27  Minn.  346,  7  N.  W.  300;  Wil- 
lis V.  Gammill,  67  Mo.  730 ;  St.  Louis,  F.,  S.  &  W.  R.  Co.  v.  Davis,  35  Kan, 
464,  11  Pac.  421 ;  Reynolds  v.  Reynolds,  55  Ark.  369,  18  S.  W.  377 ;  Emmitts- 
burg  R.  Co.  V.  Donoghue,  67  Md.  383,  10  Atl.  233,  1  Am.  St.  Rep.  396 ;  Tyler  v. 
Association,  145  Mass.  134,  13  N.  E.  360;  Mcintosh  v.  Johnson,  51  Neb.  33, 
70  N.  W.  522.  And  see  cases  cited  in  note  6,  supra.  For  the  same  reason, 
a  promise  to  take  less  than  the  sum  due  is  also  without  consideration.  Mc- 
Kenzie  v.  Culbreth,  66  N.  C.  534;  Foakes  v.  Beer,  L.  R.  9  App.  Cas.  605; 
Rose  V.  Daniels,  8  R.  I.  381 ;  Smith  v.  Phillips,  77  Va.  548 ;  Bryan  v.  Brazil, 
52  Iowa,  350,  3  N.  W,  117 ;  Hart  v.  Strong,  183  111.  349,  55  N.  E.  629.  Nor  is 
part  payment  any  consideration  for  an  agreement  to  extend  the  time  for  pay- 
ment of  the  residue.  Holliday  v.  Poole,  77  Ga.  159 ;  Liening  v.  Gould,  13  Cal. 
598;  Barron  v.  Vandvert,  13  Ala.  232;  Turnbull  v.  Brock,  31  Ohio  St.  649. 
And  see  post,  p.  614.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  S; 
Cent.  Dig.  §§  60-65. 

2  2  Fuller  V.  Kemp,  138  N.  Y.  231,  33  N.  E.  1034,  20  L.  R.  A.  785  and  note; 
Melroy  v.  Kemmerer,  218  Pa.  381,  07  Atl.  699.  11  L.  R.  A.  (N.  S.)  1018,  120 
Am,  St.  Rep.  888  and  note.  And  see  cases  cited  supra,  note  21.  See  "Accord 
and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig.  §§  60-6.5. 

■•^3  See  Two  Theories  of  Consideration  by  Prof.  James  Barr  Ames,  12  Ilarv. 
L.  R.  515,  525;  Chicago,  M.  &  St.  P.  Ry.  v.  Clark,  178  U.  S.  353,  20  Sup.  Ct 
Clark  Cont.(3d  Ed.) — 11 


162  CONSIDERATION  (Ch.  5 

of  the  rule  has  led  the  courts  to  narrow  its  scope  wherever  possi- 
ble, and  they  have  accordingly  laid  hold  upon  the  slightest  circum- 
stances to  take  a  case  out  of  its  operation.^*  Thus  it  has  been 
held  not  to  apply  to  unliquidated  debts,^^  or  where  the  payment 
is  made  before  maturity,  or  at  a  different  place  from  that  at  which 
the  debtor  was  bound  to  make  it,^®  or  where  an  insolvent  debtor 
in  reliance  on  the  creditor's  promise  to  receive  the  part  payment 
in  satisfaction  of  the  whole  debt,  refrained  from  taking  advantage 
of  the  insolvency  or  bankruptcy  law.^'' 

So  it  has  been  held  that  since  a  person  may,  if  he  choose,  make 
a  gift  to  another  which  when  accepted  will  be  irrevocable,  a  cred- 
itor may,  on  receiving  part  of  the  debt,  forgive  the  debtor  the 
residue,  and  that  a  receipt  in  full  may  be  evidence  of  such  for- 
giveness.'^* In  at  least  one  jurisdiction  the  court  has  gone  so  far 
as  to  repudiate  the  rule  altogether;  ^®  and  in  some  states  the  rule 
has  been  changed  by  statute  so  that  acceptance  of  a  less  sum 
in  satisfaction  of  a  debt  is  a  discharge.*" 

Since  a  contract  under  seal  requires  no  consideration,  a  creditor, 
on  receiving  part  payment  of  his  debt,  may  release  the  residue 
by  an  instrument  under  seal.*^ 

924,  44  L.  Ed.  1099;  Melroy  v.  Kemmerer,  218  Pa.  381,  67  Atl.  699,  11  L.  R. 
A.  (N.  S.)  1018,  120  Am.  St.  Rep.  888;  First  Nat.  Bank  of  Nashville  v.  Shook, 
100  Tenn.  436,  45  S.  W.  338 ;  Brown  v.  Kern,  21  Wash.  211,  57  Pac.  798.  See 
"Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig.  §§  60-65. 

24  See  post,l62-165.  ^^  See  post,  164.  26  See  post,  103. 

2  7  Melroy  v.  Kemmerer,  218  Pa.  381,  67  Atr.  699,  11  L.  R.  A,  (N.  S.)  1018,  120 
Am.  St.  Rep.  888;  Herman  v.  Schlesinger,  114  Wis.  382,  90  N.  W.  460,  91 
Am.  St.  Rep.  922;  Rotan.  Grocery  Co.  v.  Noble,  36  Tex.  Civ.  App.  226,  81  S. 
W.  586.  See  "Accord  and  Satisfaction,"  Doc.  Dig.  (Key-No.)  §§  8,  10;  Cent. 
Dig.  §§  60-7J,. 

2  8  McKENZIE  V.  HARRISON,  120  N.  Y.  260,  24  N.  E.  458,  8  L.  R.  A.  257,  17 
Am.  St.  Rep.  638,  Throckmorton  Cas.  Contracts,  365;  Green  v.  Langdon,  28 
Mich.  221 ;  Tyler  Cotton  Press  Co.  v.  Chevalier,  56  Ga.  494;  See,  also,  Lam- 
prey V.  Lamprey,  29  Minn.  151,  12  N.  W.  514.  A  receipt  "in  full  of  all  de- 
mands," given  because  the  other  party  refused  to  pay  more  without  it,  held 
binding.  Flynn  v.  Hurlock,  194  Pa.  462,  45  Atl.  312.  See  "Accord  and  Satis- 
faction," Dec.  Dig.  (Key-No.)  §  12;   Cent.  Dig.  §§  92-96. 

2  9  Clayton  v.  Clark,  74  Miss.  499,  21  South.  565,  37  L.  R.  A.  771,  60  Am.  St. 
Rep.  521.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig. 
§§  92-06. 

30  This  is  the  case  In  Alabama,  Maine,  North  Carolina,  Virginia,  and  Geor- 
gia. See  Tiddy  v.  Harris,  101  N.  C.  589,  8  S.  E.  227 ;  Jones  v.  Wilson,  104  N. 
C.  9,  10  S.  E.  79.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  12; 
Cent.  Dig.  §§  92-96. 

31  Bender  v.  Sampson,  11  Mass.  42;  Willing  v.  Peters,  12  Serg.  &  R.  (Pa.) 
177;  IngersoU  v,  Martin,  58  Md.  67,  42  Am.  Rep.  322;  Spitze  v.  Railroad  Co., 
75  Md.  162,  23  Atl.  307,  32  Am.  St  Rep.  378.  See  "Release,"  Dec  Dig.  (Key- 
No.)  §  12;   Cent.  Dig.  §§  18-20. 


§§    74-76)  DOING    WHAT    ONE   IS    BOUND   TO    DO  163 

Same — Consideration  for  Release  of  Residue 

The  rule  that  part  payment  of  a  debt  does  not  discharge  the 
debtor  does  not  apply  where  the  creditor,  in  addition  to  the  part 
payment,  receives  something  else  which  the  law  regards  of  value, 
or,  in  other  %vords,  where,  in  the  thing  done  or  given,  he  receives 
something  different  in  kind  from  that  which  he  is  entitled  to  de- 
mand ;^^  and  if  the  difference  is  real,  so  that  something  of  value 
is  superadded  to  the  part  payment,  the  fact  that  the  difference  or 
the  value  superadded  is  slight  will  make  no  difference,  for,  as 
we  have  seen,  the  courts  will  not  determine  the  adequacy  of  the 
consideration.  If  a  man  sells  and  becomes  bound  to  deliver  to 
another  two  particular  horses,  delivering  one  of  them  will  not 
sustain  a  promise  by  the  buyer  not  to  require  delivery  of  the 
other;  but  it  would  be  otherwise  if  the  buyer  agreed  to  receive 
some  other  particular  horse  or  cow  in  discharge  of  the  contract, 
though  it  might  be  of  comparatively  little  value.  A  money  debt 
may  be  discharged  by  the  giving  of  a  negotiable  instrument  for 
a  less  sum  than  due,  or,  as  said  in  an  old  English  case,  "the  gift 
of  a  horse,  hawk,  or  robe,  etc.,  in  satisfaction,  is  good;  for  it 
shall  be  intended  that  a  horse,  hawk,  or  robe,  etc.,  might  be  more 
beneficial  to  the  plaintiff  than  money,  in  respect  of  some  circum- 
stance, or  otherwise  the  plaintiff  would  not  have  accepted  of  it  in 
satisfaction."  ^' 

If  the  debtor  gives,  and  the  creditor  receives,  in  full  satisfaction 
of  the  debt,  the  note  of  a  third  person  for  a  smaller  sum  than  the 
amount  of  the  debt,  there  is  a  sufficient  consideration  for  his  prom- 
ise to  forego  the  residue;^*  and  so  it  is  where  the  smaller  sum 
agreed  to  be  taken  is  guarantied,  or  a  note  therefor  is  indorsed, 
by  a  third  person;^"*   or  where  the  smaller  sum  is  paid  before  the 

82  JAFFRAY  V.  DA-^JIS,  124  N.  Y.  164,  26  N.  E.  351,  11  L.  R.  A.  710,  Throck- 
morton Cas.  Contracts,  120;  Day  v.  Gardner,  42  N.  J.  Eq.  199,  7  Atl.  365; 
Stacy  V.  Cook,  G2  Kan.  50,  61  Pac.  399.  See  "Accord  and  Satisfaction,"  Dec. 
Dig.  {Key-'No.)  §  8;    Cent.  Dig.  §§  60-65. 

3  3  Pinnel's  Case,  5  Coke,  117a.  And  see  Hasted  v.  Dodge  (Iowa)  35  N.  W. 
462.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig.  §§ 
60-65. 

84  Brooks  V.  White,  2  Mete.  (Mass.)  283,  37  Am.  Dec.  95 ;  Kellogg  v.  Rich- 
ards, 14  Wend.  (N.  Y.)  116 ;  Sanders  v.  Bank,  13  Ala.  353 ;  Hardesty  v.  Gra- 
ham (Ky.)  3  S.  W,  909.  Check  of  third  person.  Guild  v.  Butler,  127  Mass. 
386.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §§  9,  11;  Cent.  Dig. 
§§  88-91,  75-82. 

85Steinman  v.  Magnus,  11  East,  390;  Singleton  v.  Thomas,  73  Ala.  205; 
Jenness  v.  Lane,  26  Me.  475 ;  Maddux  v.  Bevan,  39  Md.,  at  page  499 ;  Boyd 
V.  Hitchcock,  20  Johns.  (N.  Y.)  76,  11  Am.  Dec  247;  Varney  v.  Conery,  77  Mo. 
527,  1  Atl.  683 ;  Mason  v.  Campbell,  27  :Minn.  54,  6  N.  W.  405.  See  "Accord 
and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §§  9, 11;  Cent.  Dig.  §§  88-91. 


1G4  CONSIDERATION  (Ch.  5 

debt  is  due,  or  at  a  different  place  than  required  by  the  contract ;  '• 
or  where  a  note  secured  by  a  mortgage  is  given  for  the  smaller 
sum.^^ 

Same — Unliquidated  Claim 

The  rule  that  payment  of  less  than  the  amount  claimed  is  no 
consideration  for  a  discharge  applies  only  when  the  sum  due  is 
definite  and  certain.  The  payment  of  less  than  the  amount  claim- 
ed, if  the  sum  due  is  unliquidated,  is  a  good  consideration  for  the 
release.^*  This  proceeds  upon  the  ground  that  the  parties  have 
agreed  to  settle  an  unliquidated  claim,  or,  in  other  words,  have 
agreed  on  an  accord  and  satisfaction  of  such  claim. ^^ 

Same — Compromise 

We  have  already  seen,  in  treating  of  forbearance  as  a  consid- 
eration, that  where  a  demand  is  made  and  disputed,  or  a  suit  is 
brought,  the  parties  may  enter  into  a  compromise,  and  that  the 
party  upon  whom  the  demand  is  made  or  against  whom  the  suit 
is  brought  will  be  bound  thereby.  The  consideration  for  his 
promise  is  the  forbearance  of  the  other  party  to  insist  on  his  orig- 
inal demand,  or  to  further  prosecute  his  action.*"  In  such  a  case 
the  creditor  or  plaintiff  is  also  bound  by  the  compromise.  The 
settlement  of  the  dispute  and  definite  promise  by  the  debtor  is 
a  consideration  for  his  promise  to  forego  any  further  claim.     He 

sePinnel's  Case,  5  Coke,  117a;  Brooks  v.  White,  2  Mete.  (Mass.)  283.  37 
Am.  Dec.  95 ;  Harper  v.  Graham,  20  Ohio,  105 ;  Schweider  v.  Lang,  29  Minn. 
254,  13  N.  W.  33,  43  Am.  Rep.  202 ;  McKenzie  v.  Culbreth,  66  N.  C.  534 ;  Jones 
V.  Perkins,  29  Miss.  139,  64  Am.  Dec.  136;  Keid  v.  Hibbard,  6  Wis.  175;  Chicora 
Fertilizer  Co.  v.  Dunan,  91  Md.  144,  46  Atl.  347,  50  L.  R.  A.  401.  Cf.  Saun- 
ders V.  Whitcomb,  177  Mass.  457,  59  N.  E.  192.  See  "Accord  and  Satisfaction," 
Dec.  Dig.  {Eey-No.)  §§  9,  11;   Cent.  Dig.  §§  75-91. 

8T  JAFFRAY  V.  DAVIS,  124  N.  Y.  164,  26  N.  E.  351,  11  L.  R.  A.  710,  Throck- 
morton Cas.  Contracts,  120;  Post  v.  Bank,  138  111.  559,  28  N.  E.  978.  See 
''Accord  and  Satisfaction;'  Dec.  Dig.  {Key-No.)  §§  9,  11;    Cent.  Dig.  §§  75-91. 

3  8  Wilkinson  v.  Byers,  1  Adol.  &  E.  106;  Baird  v.  United  States,  96  U.vS. 
430,  24  L.  Ed.  703 ;  Goss  v.  Ellison,  136  Mass.  503 ;  Potter  v.  Douglass,  44 
Conn.  541;  Riley  v.  Kershaw,  52  Mo.  224;  Ogbom  v.  Hoffman,  52  Ind.  439; 
Fuller  V.  Kemp,  138  N.  Y.  231,  33  N.  E.  1034,  20  L.  R.  A.  785;  Sanford  v. 
Abrams,  24  Fla.  181,  2  South.  373;  Berdell  v.  Bissell,  6  Colo.  162;  Stearns  v. 
Johnson,  17  Minn.  142  (Gil.  116) ;  Tanner  v.  Merrill,  108  Mich.  58,  65  N.  W- 
064,  31  L.  R.  A.  171,  62  Am.  St.  Rep.  687;  Nassoiy  v.  Tomlinson,  148  N.  Y. 
32G,  42  N.  E.  715,  51  Am.  St.  Rep.  695;  Ostrander  v.  Scott,  161  111.  339,  43  N. 
E.  1089 ;  Chicago,  M.  &  St  P.  Ky.  v.  Clark,  178  U.  S.  353,  20  Sup.  Ct.  924.  44 
L.  Ed.  1099.  But  see  Hufif  v.  Logan  (Ky.)  60  S.  W.  483.  See  "Accord  and  Sat- 
isfaction," Dec.  Dig.  (Key-No.)  §  10;    Cent.  Dig.  §§  67-7^. 

3  9  Tompkins  v.  Hill,  145  Mass.  379,  14  N..  E.  177;  post,  p.  615.  See  "Accord 
and  Sntisfnction;'  Dec.  Dig.  {Key-No.)  §  10;    Cent.  Dig.  §§  67-74. 

*o  Ante,  p.  IGO. 


§§  74-76)  DOING  WHAT  one  is  bound  to  do  165 

cannot  disregard  the  compromise  on  the  ground  that  the  debtor 
promised  only  what  he  was  already  bound  to  do.*^ 

Same — Accord  and  Satisfaction 

Whether  the  sum  due  is  certain  or  uncertain,  the  consideration 
for  the  promise  to  forego  the  residue  of  the  debt  must  be  executed. 
It  is  not  enough  that  the  parties  are  agreed.  Their  agreement 
must  be  carried  out  if  it  is  to  be  an  answer  to  the  original  cause 
of  action.  Where  it  has  been  carried  out,  it  is  an  accord  and  sat- 
isfaction. Where  it  has  not  been  carried  out  it  is  an  accord  execu- 
tory. As  said  in  an  old  case :  "Accord  executed  is  satisfaction ; 
accord  executory  is  only  substituting  one  cause  of  action  in  the 
room  of  another,  which  might  go  on  to  any  extent."  *''  This  is 
a  subject,  however,  which  relates  to  the  discharge  of  contract.*^ 

Same — Composition  with  Creditors 

A  composition  with  creditors,  whereby  each  creditor  agrees  to 
receive  a  certain  proportion  of  the  sum  due  him,  seems,  at  first 
thought,  to  be  an  infraction  of  the  rule  that  part  payment  of  a 
debt  is  no  discharge  unless  there  is  some  consideration  in  addi- 
tion to  the  part  payment  for  the  promise  to  forego  the  residue. 
The  promise  of  the  debtor  to  pay,  or  payment  by  him,  of  a  portion 
of  the  debt,  is  not  the  consideration  for  the  promises  of  the  cred- 
itors to  forego  the  balance.**  The  consideration  must  be  and  is 
something  more  than  this. 

In  a  leading  English, case  Parke,  J.,  said:  "Here  each  creditor 
entered  into  a  new  agreement  with  the  defendant  [the  debtor], 
the  consideration  of  which,  to  the  creditor,  was  the  forbearance 
by  all  the  other  creditors  who  were  parties,  to  insist  upon  their 
claims."  *"  The  view  that  the  promise  of  each  creditor  is  sustain- 
ed by  the  consideration  moving  from  the  others  has  been  frequent- 

*i  Truax  v.  Miller,  48  Minn.  62,  50  N.  W.  935;  Sisson  v.  City  of  Baltimore, 
51  Md.  83 ;  Ogborn  v.  Hoffman,  52  Ind.  439 ;  McCall  v.  Nave.  52  Miss.  494 ; 
Union  Pac.  R.  Co.  v.  Anderson,  11  Colo.  293,  18  Pac.  24;  Perkins  v.  Headley, 
49  Mo.  App.  556;  Gates  v.  Steele,  58  Conn.  316,  20  Atl.  474.  18  Am.  St.  Rep. 
208;  Battle  v.  McArthur  (C.  C.)  49  Fed.  715;  Northern  Liberty  Market  Co. 
V.  Kelly,  113  U.  S.  199,  5  Sup.  Ct.  422,  28  L.  Ed.  948 ;  Slade  v.  Elevator  Co.,  39 
Neb.  600,  58  N.  W.  191 ;  Town  of  Brandon  v.  Jackson,  74  Vt.  78,  52  Atl.  114 ; 
Dunbar  v.  Dunbar,  180  Mass.  170,  62  N.  E.  248,  94  Am.  St.  Rep.  623.  See  "Con- 
tracts," Dec.  Dig.  {Kev-No.)  §  68;   Cent.  Dig.  §§  328-330. 

42  Lynn  v.  Bruce,  2  H.  Bl.  319.  See  "Accord  and  Satisfaction,"  Dec.  Dig. 
(Key-No.)  §  16;   Cent.  Dig.  §§  116-122. 

43  Post,  p.  615. 

**  Fitch  V.  Sutton,  5  East,  230.  See  "Compositions  with  Creditors,"  Dec. 
Dig.  {Key-No.)  §  8;   Cent.  Dig.  §  8. 

•••'•Good  V.  Cheesmnn,  2  Bam.  &  Adol.  335.  See  "Compositions  itith  Credi- 
tors," Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig.  i  8. 


1G6  CONSIDERATION  (Ch.  5 

ly  approved.*'  It  has,  however,  met  with  criticism  on  the  ground 
that  the  debtor,  being  a  stranger  to  tlie  consideration,  cannot 
enforce  such  a  contract.*^  Sir  Wilham  Anson  finds  consideration 
moving  from  the  debtor  in  his  procurement  of  the  promise  by  the 
other  creditors  to  forhear.**  On  one  ground  or  another  such 
agreements  are  universally  sustained.*' 


SAME— IMPOSSIBILITY  AND  VAGUENESS 

77.  IMPOSSIBLE  PROMISE.     A  promise  to  do  something  which 

is  either  impossible  in  law,  or  physically  impossible,  is  no 
consideration.  The  thing  must  be  impossible  on  its  face ; 
not  merely  improbable,  or  impossible  to  the  promisor. 

78.  VAGUE  PROMISE.     A  promise  which  is  so  vague  and  indefi- 

nite as  to  be  incapable  of  enforcement  is  no  consideration. 

Impossible  Promise 

The  courts  will  also  hold  a  consideration  unreal,  and  therefore  no 
consideration  at  all,  where  it  is  impossible  upon  its  face.  As  will 
presently  be  seen,  practical  impossibility,  unknown  to  the  parties . 
when  they  entered  into  their  contract,  may  avoid  it  on  the  ground 
of  mistake;'"'  or  impossibility  of  performance,  arising  subsequent 
to  the  making  of  the  contract,  may,  under  some  circumstances, 
operate  as  a  discharge;''^  but  we  are  here  concerned  with  prom- 
ises to  do  a  thing  so  obviously  impossible  that  the  promise  can 
form  no  real  consideration. 

The  consideration  may  be  either  (1)  impossible  in  law,  or  (2) 
physically  impossible.  Where,  for  instance,  a  debtor  made  a  prom- 
ise to  the  servant  of  his  creditor  in  consideration  of  a  promise  by 
the  servant  to  release  him  from  the  debt,  it  was  held  that  there  was 

4  6  Williams  v.  Carrington,  1  Hilt  (N.  Y.)  515;  Perkins  v.  Lockwood,  100 
Mass.  249,  1  Am.  Rep.  103 ;  Brown  v.  Farnham,  48  Minn.  317,  51  N.  W.  377. 
See,  also,  White  v.  Kuntz,  107  N.  Y.  518,  14  N.  E.  423,  1  Am.  St.  Rep.  886.  See 
"Compositions  tvith  Creditors,"  Dec.  Dig.  (Key-^'o.)  §  8;  Cent.  Dig.  §  8. 

*7  See  Huffcutt,  Anson,  Cont  108,  note  1 ;    Harriman,  Cont.  §  126. 

4  8  Anson,  Cont.  (8th  Ed.)  90. 

49  Fellows  V.  Stevens,  24  Wend.  (N.  Y.)  294;  Murray  v.  Snow,  37  Iowa,  410; 
Cheveront  v.  Textor,  53  Md.  295,  307 ;  Falcoubury  v.  Kendall,  76  Ind.  260 ; 
Robert  v.  Barnum,  80  Ky.  2S;  Pierce  v.  Jones,  8  Rich.  (8  S.  C.)  273,  28  Am. 
Rep.  288;  Paddleford  v.  Thacher,  48  Vt  574;  Boyd  v.  Hind,  1  Hurl.  &  N. 
938 ;  Slater  v.  Jones,  L.  R.  8  Exch.  193 ;  Stewart  v.  Langston,  103  Ga.  290,  30 
S.  E.  35.  See  "Compositions  with  Creditors,"  Dec.  Dig.  {Key-No.)  §  8;  Cent. 
Dig.  §  8. 

6  0  Post,  p.  251.  "^  Post,  p.  590. 


§§    77-78)  IMPOSSIBILITY    AND    VAGUENESS  1G7 

no  consideration  for  the  debtor's  promise,  as  the  servant  had  no 
power  to  release  the  debt.^^  So,  also,  an  undertaking  that  another's 
land  shall  sell  for  a  given  sum  on  a  certain  day  has  been  held  insuffi- 
cient to  support  a  promise,  on  the  ground  that  a  person  cannot  com- 
pel the  sale  of  another's  property.^®  In  these  cases  the  considera- 
tion is  impossible  in  law.  A  promise  to  go  from  New  York  to  Lon- 
don in  a  day  would  be  physically  impossible,  and  could  form  no 
consideration  for  a  promise  given  in  return. °* 

Impossibility,  as  used  in  this  connection,  does  not  mean  anything 
more  than  a  prima  facie  legal  impossibility  or  physical  impossibility 
"according  to  the  state  of  knowledge  of  the  day."  *"*  In  the  first 
case  of  legal  impossibility  mentioned  above,  the  promisor  might 
procure  the  release  of  the  debt;  and,  in  the  second  case,  he  might 
procure  the  owner  of  the  land  to  sell  it  by  the  time  specified.  There 
is,  however,  a  prima  facie  impossibility,  and  this  is  enough.  So  it 
may  be  that,  in  the  future,  means  may  be  discovered  by  which  one 
may  be  able  to  travel  from  New  York  to  London  in  a  day ;  but,  ac- 
cording to  the  present  state  of  knowledge,  it  is  physically  impossi- 
ble. It  was  said  in  a  New  York  case  that  if  the  promise  be  "with- 
in the  range  of  possibility,  however  absurd  or  improbable  the  idea 
of  the  execution  of  it  may  be,  it  will  be  upheld ;  as  where  one  cove- 
nants it  shall  rain  to-morrow,  or  that  the  pope  shall  be  at  Westmin- 
ster on  a  certain  day.  To  bring  the  case  within  the  rule  of  dispen- 
sation, it  must  appear  that  the  thing  to  be  done  cannot  by  any 
means  be  accomplished;  for  if  it  is  only  improbable,  or'out  of  the- 
power  of  the  obligor,  it  is  not  in  law  deemed  impossible."  ^® 

6  2  Harvey  v.  Gibbons,  2  Lev.  161.  And  see  Ward  v.  Hollins,  14  Md.  158: 
Pierce  v.  Pierce,  17  Ind.  App.  107,  46  N.  E.  480.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  80;  Cent.  Dig.  §§  S82-SS7,  S95. 

ea  Stevens  v.  Coon,  1  Pin.  (Wis.)  356.  See  "Contracts,"  Dec.  Dig.  {Key-No.) 
§  80;  Cent.  Dig.  §§  S82-S81,  S95. 

8  4  See  James  v.  Morgan,  1  Lev.  Ill ;  Thornborow  v.  Whiteacre,  2  Ld. 
Raym.  1164 ;  Bennett  v.  Morse,  6  Colo.  App.  122,  39  Pac.  582.  A  covenant  by 
an  applicant  for  life  insurance  that  he  will  not  die  by  his  own  hand  while  in- 
sane does  not  create  a  contract  which  will  defeat  recovery  on  the  policy 
where  the  insured  takes  his  life  while  insane,  since  the  covenant  was  one 
impossible  to  observe,  and  known  to  be  so  by  both  parties.  Kelley  v.  Insur- 
ance Co.  (C.  C.)  109  Fed.  56.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  80;  Cent. 
Dig.  §§  3S2-387,  395. 

5  5  Per  Brett,  J.,  Clifford  v.  Watts,  L.  R.  5  C.  P.  577,  588.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  80;   Cent.  Dig.  §§  382-387,  395. 

6  6  Beehe  v.  Johnson,  19  Wend.  (N.  Y.)  500,  32  Am.  Dec.  518,  citing  3  Com. 
Dig.  93 ;  1  Rolle,  Abr.  419.  And  see  Watson  v.  Blossom,  50  Hun,  600,  4  N.  Y. 
Supp.  489 ;  Clifford  v.  Watts,  L.  R.  5  C.  P.  588 ;  The  Harriman  v.  Emerick,  9 
Wall.  161,  19  L.  Ed.  629.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  80;  Cent. 
Dig.  §§  3S2-387,  395. 


168  CONSIDERATION  '  (Ch.  5 

Vague  Promise 

Again,  a  consideration  may  be  unreal  because  it  is  so  vague  in  its 
terms  as  to  be  practically  incapable  of  enforcement.  In  such  case  it 
may  be  classed  with  impossible  considerations.  Where,  for  in- 
stance, in  an  action  on  a  note  given  by  a  son  to  his  father  the  son 
pleaded  a  promise  made  by  his  father  to  discharge  him  from  liabil- 
ity on  the  note  in  consideration  of  his  ceasing  to  make  certain  com- 
plaints, which  he  had  been  in  the  habit  of  making,  to  the  effect  that 
he  had  not  enjoyed  as  many  advantages  as  the  other  children,  it 
was  said  that  the  son's  promise  was  no  more  than  a  promise  "not 
to  bore  his  father,"  and  it  was  held  too  vague  to  constitute  a  con- 
sideration for  the  father's  promise.  "A  man,"  said  the  court,  "might 
complain  that  another  person  used  the  highway  more  than  he  ought 
to  do,  and  that  other  might  say,  'Do  not  complain,  and  I  will  give 
you  £5.'  It  is  ridiculous  to  suppose  that  such  promises  could  be 
binding."  "  So  a  contract  by  which  a  person  promised  to  erect  "a 
permanent  and  first-class  hotel  for  the  accommodation  of  the  travel- 
ing public,  and  maintain  the  same  in  a  first  class  manner,"  in  con- 
sideration of  the  promise  of  a  railroad  company  that  it,  "by  the 
patronage  of  its  road,  would  support  and  maintain  the  same,"  has 
been  held  void,  because  the  stipulations  were  too  vague  and  indefi- 
nite.'* 

We  have  already  sufficiently  discussed  the  question  of  vagueness 
and  uncertainty  in  agreements.^® 

LEGALITY  OF  CONSIDERATION 

79.  The  consideration,  to  support  a  promise,  must  be  legal;  and 
therefore  a  promise  to  do  or  doing  what  is  illegal  is  no 
consideration.®  ° 

It  is  well  to  state  this  rule  here,  as  indicating  a  necessary  element 
in  consideration.  It  will  be  treated  when  we  come  to  consider,  as 
an  element  in  the  formation  of  contract,  the  legality  of  the  objects 
for  which  the  parties  to  a  contract  enter  into  it. 

6T  White  V.  Bluett,  23  Law  J.  Exch.  36,  2  Com.  Law  Rep.  301.  And  see  Bal- 
lou  V.  March,  133  Pa.  64,  19  Atl.  304.  See  ''Contracts;''  Dec.  Dig.  (Key-Xo.)  § 
9;  Cent.  Dig.  §§  10-20. 

6  8  HART  V.  RAILROAD  CO.,  101  Ga.  188,  28  S.  E.  037,  Throckmorton  Cas. 
Contracts,  126.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  9;   Cent.  Dig.  §§  10-20. 

69  Ante,  p.    64. 

eo  BISHOP  T.  PALMER,  146  Mass.  469,  16  N.  E.  299,  4  Am.  St.  Rep.  339, 
Throckmorton  Cas.  Contracts,  290;  Hatch  v.  Mann,  15  Wend.  (N.  Y.)  4.5; 
Hartley  v.  Rice,  10  East,  22.  See  post,  p.  S14  et  seq.  See  "Contracts;'  Dec. 
Dig.  (Key-No.)  §  103;   Cent.  Dig.  §§  Ji6S-J,76. 


§    80)  CONSIDERATION    IN    RESPECT    OF   TIMB  169 

CONSIDERATION    IN    RESPECT    OF    TIME— PAST    CON- 
SIDERATION 

80.  A    consideration  may  be  executory  or  executed,  but  it  cannot 
be  past,  except — 

EXCEPTIONS  ''^ — (a)  Where  the  past  consideration  was  given 
at  the  request  of  the  promisor. 

(b)  Where  the  promise  is  to  pay  for  something  voluntarily 

done  by  the  promisee,  which  the  promisor  was  legally 
bound  to  do. 

(c)  Where  a  person,  by  a  new  promise,  revives  an  agreement 

by  which  he  has  benefited,  but  which  is  not  void,  but 
voidable  or  unenforceable  against  him,  by  reason  of  a 
rule  of  law,  meant  for  his  advantage,  which  he  may 
waive. 

Executory   Consideration 

The  consideration  for  a  promise  is  executory  when  it  is  a  promise 
given  in  return  to  do  something  in  the  future.  In  regard  to  this, 
there  is  nothing  to  be  added  to  what  has  already  been  said  with  re- 
gard to  the  nature  of  consideration  in  general.  We  have  seen  that 
a  promise  on  one  side  is  a  good  consideration  for  a  promise  on  the 
other. 

Executed   Consideration 

A  contract  arises  upon  an  executed  consideration  when  one  of  the 
parties  has  either  in  the  act  which  amounts  to  a  proposal  or  to  an 
acceptance,  as  the  case  may  be,  done  all  that  he  is  bound  to  do  un- 
der the  contract,  leaving  an  outstanding  liability  on  the  other  side 
only.  The  two  forms  of  consideration  thus  suggested  have  been 
described  as  (1)  acceptance  of  an  executed  consideration,  and  (2) 
consideration  executed  upon  request.*^  They  arise  when  the  pro- 
posal is  an  offer  of  an  act  for  a  promise,  and  the  act  is  accepted ; 
or  where  it  is  an  offer  of  a  promise  for  an  act,  and  the  act  is  done. 

In  the  first  case  a  man  offers  his  labor  or  goods  under  such  cir- 
cumstances that  he  obviously  expects  to  be  paid  for  them,  and  the 
contract  arises  when  the  labor  or  goods  are  accepted,  the  acceptor 
becoming  bound  to  pay  a  reasonable  price  for  them.**^  The  con- 
sideration executed  upon  request,  or  the  contract  which  arises  on 

•1  The  first  two  exceptions  are  doubtful,  post,  pp.  171-173. 

82  Leake,  Cont  23. 

«3Ante,  p.  19;  Hoadley  v.  McLalne,  10  Blng.  482;  Hart  t.  Mills,  15  Mees, 
&  W.  87.  See  "Contracts,"  Dec.  Diy.  {Key-No.)  §§  78,  19;  Cent.  Dig.  §§  SoJi- 
S81. 


170  CONSIDERATION  ■   (Ch.  5 

the  acceptance  by  act  of  the  offer  of  a  promise,  is  best  illustrated 
by  the  case  of  an  advertisement  of  a  reward  for  services,  which 
makes  a  binding  promise  to  give  the  reward  when  the  service  is 
rendered.  Under  these  circumstances,  it  is  not  the  offeror,  but  the 
acceptor,  who  has  done  his  part  in  becoming  a  party  to  the  con- 
tract.^* This  form  of  consideration  will  support  an  implied  as  well 
ds  an  express  promise  where  a  man  is  asked  to  perform  certain 
services  which  will  entail  certain  liabilities  and  expenses.  Thus, 
where  a  person  is  employed  to  deal  with  property  for  a  certain  pur- 
pose, and,  in  the  course  of  the  employment,  he  is  compelled  to  pay 
duties  to  the  government,  he  may  recover  the  amount  from  his  em- 
ployer on  aM  implied  promise  to  repay.'* 

Past  Consideyation 

Strictly,  it  is,  a  misnomer  to  speak  of  a  past  "consideration,"  for 
it  is  in  fact  no  consideration  at  all.  A  past  consideration,  so  called, 
is  some  act  or  forbearance  in  time  past  by  which  a  man  has  benefit- 
ed without  thereby  incurring  any  legal  liability.  If,  afterwards, 
whether  from  good  feeling  or  interested  motives  it  matters  not,  he 
makes  a  promise  to  the  person  by  whom  he  has  been  so  benefited, 
and  that  promise  is  made  upon  no  other  consideration  than  the  past 
benefit,  the  promise  is  gratuitous,  and  cannot  be  enforced.®*  Thus, 
where  a  person  who  had  previously  sold  a  vicious  horse  without 
any  warranty,  either  express  or  implied,  afterwards  promised  that 
it  was  sound  and  free  from  vice,  it  was  held  that  the  promise  was 
not  binding  for  want  of  consideration.®'^  So,  also,  it  has  repeated- 
ly been  held  that  services  rendered  in  the  past,  but  not  at  the  ex- 

•'''Axite,  pp.  47,  48;  England  v.  Davidson,  11  Adol.  &  El.  856.  See  "Con- 
tracts;' Dec.  Dig.  {Key-JSfo.)  §§  7'S,  79;   Vent.  Dig.  §§  ii5',-3Sl. 

«5  "Whether  the  request  be  direct,  as  where  the  party  is  expressly  desired 
by  the  defendant  to  pay,  or  indirect,  where  he  is  placed  by  him  under  a  lia- 
bility to  pay,  and  does  pay,  makes  no  difference."  Brittain  v.  Lloyd,  14 
Mees.  &  W.  762.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  78;  Cent.  Dig.  §§  S54- 
S56. 

6  6  MOORE  V.  ELMER,  180  Mass.  15,  61  N.  E.  259,  Throckmorton  Cas.  Con- 
tracts, 128;  Hunt  v.  Bate  (1568)  Dyer.  272;  Bulkley  v.  Landon,  2  Conn.  404; 
Bartholomew  v.  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am.  Dec.  237;  Chaffee  v. 
Thomas,  7  Cow.  (N.  Y.)  358 ;  Greene  v.  First  Parish  in  Maiden,  10  Pick. 
(Mass.)  500;  Williams  v.  Hathaway,  19  Pick.  (Mass.)  387;  Wilson  v.  Edmonds, 
24  N.  H.  517 ;  Marsh  v.  Chown,  104  Iowa,  556,  73  N.  W.  1040 ;  Stoneburner  v. 
Motley,  95  Va.  784,  30  S.  E.  364.  Some  of  the  earlier  cases  sustained,  and 
many  late  cases  seem  to  sustain,  promises  on  a  past  consideration  on  the 
ground  of  moral  obligation.  Barnes  v.  Hedley,  2  Taunt.  184 ;  Lee  v.  Mugger- 
Idge,  5  Taunt.  36.  See  ante,  p.  136;  post,  p.  175.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  79;   Cent.  Dig.  §§  S57-S81. 

6T  Roscorla  v.  Thomas,  3  Q.  B.  234.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
79;   Cent.  Dig.  §§  S57-3S1. 


§    80)  CONSIDERATION    IN    RESPECT   OF   TIME  171 

press  or  implied  request  of  the  person  benefited  by  them,  will  not 
support  a  promise  by  him  to  pay  for  them.^*  In  a  Michigan  case  in 
which  liquor  had  been  sold  in  violation  of  a  statute,  which  was  aft- 
erwards repealed,  the  court  held  that,  as  the  contract  was  void,  a 
promise  by  the  buyer  to  pay,  made  after  the  statute  was  repealed, 
in  consideration  of  the  sale  and  of  an  extension  of  the  time  for  pay- 
ment originally  agreed  upon,  was  without  consideration. ®®  So, 
where  the  balance  of  a  debt  has  been  voluntarily  and  effectually 
released  on  payment  of  a  part  of  it,  a  subsequent  promise  by  the 
debtor  to  pay  the  part  released  cannot  be  enforced.'* 

Exceptions  to  the  Rule  as  to  Past  Consideration 

(1)  It  is  generally  declared  a  past  consideration  will  support  a 
subsequent  promise  if  the  consideration  was  given  at  the  request 
of  the  promisor.  In  Lampleigh  v.  Braithwait  the  plaintiff  sued  for 
money  which  the  defendant  had  promised  to  pay  him  for  services 
rendered  previous  to  the  promise,  at  the  defendant's  request,  but 
without  any  promise  at  the  time  of  the  request  and  of  the  rendi- 
tion of  the  services.  The  court  agreed  "that  a  mere  voluntary 
courtesy  will  not  have  consideration  to  uphold  an  assumpsit.  But, 
if  that  courtesy  were  moved  by  a  suit  or  request  of  the  party  that 
gives  the  assumpsit,  it  will  bind;  for  the  promise,  though  it  fol- 
lows, yet  it  is  not  naked,  but  couples  itself  with  the  suit  before,  and 
the  merits  of  the  party  procured  by  that  suit." '^     On  principle,  it 

88  Mills  V.  Wyman,  3  Pick.  (Mass.)  207;  Bartholomew  v.  Jackson,  20  Johns. 
(N.  Y.)  28,  11  Am.  Dec.  237;  Dearborn  v.  Bowman,  3  Mete.  (Mass.)  155;  Allen 
V.  Bryson,  67  Iowa,  591,  25  N.  W.  820,  56  Am.  Rep.  358;  Osier  v.  Hobbs,  33 
Ark.  215;  Ellicott  v.  Turner,  4  Md.  476.  See  ''Contracts,"  Dec.  Dig.  (Key-No.) 
§  79;  Cent.  Dig.  §§  S57-3S1. 

69  Ludlow  V.  Hardy,  38  Mich.  690.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  § 
79;  Cent.  Dig.  §§  357-S81. 

70  Hale  V.  Riee,  124  Mass.  299;  Mason  v.  Campbell,  27  Minu.  54,  6  N.  W. 
405 ;  Montgomery  v.  Lampton,  3  Mete.  (Ky.)  519 ;  Shepard  v.  Rhodes,  7  R.  I. 
470,  84  Am.  Dec.  573 ;  Stafford  v.  Bacon,  1  Hill  (N.  Y.)  532,  37  Am.  Dec.  306. 
But  see  Willing  v.  Peters,  12  Serg.  &  R.  (Pa.)  177.  See  ''Contracts,"  Dec.  Dig. 
{Key-No.)  §  79;   Cent.  Dig.  §§  357-3S1. 

Ti  Lampleigh  v.  Braithwait  (A.  D.  1615)  Hob.  105,  1  Smith,  Lead.  Cas.  67. 
And  see  Sidenham  v.  Worlington  (15S5)  2  Leon.  224;  Marsh  v.  Rainsford 
(1588)  2  Leon.  Ill ;  Riggs  v.  Bullingham  (1599)  Cro.  Eliz.  715 ;  Bosden  v.  Sir 
John  Thenne  (1603)  Yelv.  40 ;  Field  v.  Dale,  1  Rolle,  Abr.  11 ;  Boothe  v.  Fitz- 
patrick,  36  Vt.  681 ;  Chaffee  v.  Thomas,  7  Cow.  (N.  Y.)  358 ;  Dearborn  v. 
Bowman,  3  Mete.  (Mass.)  155 ;  Comstock  v.  Smith,  7  Johns.  (N.  Y.)  87 ;  Allen 
V.  Woodward,  22  N.  H.  544 ;  Goldsby  v.  Robertson,  1  Blackf.  (Ind.)  247 ;  Car- 
son V.  Clark,  2  111.  (1  Scam.)  113,  25  Am.  Dec.  79 ;  tonsdale  v.  Brown,  4  Wash. 
C.  0.  148,  Fed.  Cas.  No.  8,494 ;  Wilson  v.  Edmonds,  24  N.  H.  517.  The  pre- 
vious request  may  be  inferred  from  the  beneficial  character  of  the  services, 
or  other  consideration,  and  the  other  circumstances.  Hicks  v.  Burhans,  IC 
Johns.  (N.  Y.)  243;    Oatfiold  v.  Waring,  14  Johns.  (N.  Y.)  188;    Wilson  v.  Ed- 


172  CONSIDERATION  (Ch.  5 

would  seem  that,  unless  the  services  were  rendered  under  such  cir- 
cumstances that  the  law  would  imply  a  promise  to  pay  what  they 
were  worth,  a  subsequent  promise  would  be  without  effect,"^*  and 
that  in  that  case  the  only  effect  of  the  subsequent  promise  would 
be  as  evidence  of  the  value  of  the  services.''^  In  many  of  the  cases, 
indeed,  in  which  the  exception  was  recognized  the  subsequent 
promise  was  coextensive  with  that  which  would  have  been  implied 
by  law.  And  in  view  of  the  repudiation  of  the  doctrine  of  past  con- 
sideration, the  exception  is  discredited  by  modern  text-writers.'* 
Lampleigh  v.  Braithwait  has,  however,  been  followed  in  several 
recent  cases  in  this  country.''' 

Some' cases  even  go  so  far  as  to  say  that  even  though  the  past 
consideration  was  rendered  without  request,  yet,  if  it  moved  directly 
from  the  promisee  to  the  promisor,  and  inured  directly  to  the  prom- 
isor's benefit,  the  subsequent  promise  is  binding;  ''^  but  these  cases 
are  doubtful,  unless  they  can  be  sustained  on  the  ground  that  the 
ratification  of  an  unauthorized  act  is  equivalent  to  a  request.''^  It 
has  been  held  that  if  the  past  consideration,  though  rendered  at  the 
request  of  the  other  party,  was  intended  by  both  parties  to  be  gra- 
tuitous, the  subsequent  promise  to  pay  therefor  is  not  supported  by 
a  consideration.''* 

(2)  There  is  another  exception,  or  possible  exception,  to  the  rule 

monds,  24  N.  H.  517.  The  rule  laid  down  in  Lampleigh  v.  Braithwait  was 
literally  adhered  to  in  Ireland  in  a  comparatively  late  case.  Bradford  v. 
Roulston,  8  Ir.  C.  L.  468.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  79;  Cent. 
Dig.  §§  357-381. 

T 2  MOORE  V.  ELMER,  180  Mass.  15,  61  N.  E.  2.59,  Throckmorton  Cas.  Con- 
tract?, 128,  in  which  it  is  said,  per  Holmes,  C.  J. :  "The  modern  authorities 
which  speak  of  services  rendered  upon  request  as  supporting  a  promise  must 
be  confined  to  cases  where  the  request  implies  an  undertaking  to  pay."  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  75;   Cent.  Dig.  §§  357-SSl. 

7  3  See  Kennedy  v.  Brown,  18  C.  B.  N.  S.  677,  per  Earle,  C.  J.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  79;    Cent.  Dig.  §§  3.57-3 Si. 

T*  Anson,  Cont  (Sth  Ed.)  98-100;  Pollock,  Cont.  (3d  Ed.)  187;  Harriman, 
Cont.  §  139. 

7  5  Pool  V.  Horner,  64  Md.  131,  20  Atl.  10.36;  Stuht  v.  Sweesy,  48  Neb.  767. 
67  N,  W.  748;  Silverthorn  v.  Wylie,  96  Wis.  69,  71  N.  W.  107;  Montgomery 
V.  Downey,  116  Iowa,  632,  88  N,  W.  810.  See,  also.  Daily  v.  Minninck,  117 
Iowa,  563,  91  N.  W.  913,  60  L.  R.  A.  840.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
I  79;  Cent.  Dig.  §§  357-381. 

TO  Boothe  V.  Fitzpatrick,  36  Vt.  681;  Seymour  v.  Town  of  Marlboro,  40  Vt. 
171;  Doty  v.  Wilson,  14  Johns.  (N.  Y.)  378.  -See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  79';  Cent.  Dig.  §§  357-381. 

77  Post,  p.  173,  note  83. 

78  Allen  V.  Bryson,  67  Iowa,  591,  25  N.  W.  820,  56  Am.  Rep.  358;  Osier  v. 
Hobbs,  33  Ark.  215.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig. 
§8  357-381. 


§    80)  CONSIDERATION    IN    RESPECT   OF   TIME  173 

in  cases  where  one  person  has  voluntarily  done  what  another  per- 
son was  legally  bound  to  do,  and  the  latter  afterwards  promises  to 
pay  him  therefor.  The  English  cases  usually  cited  in  support  of 
this  rule  all  turned  upon  the  liability  of  parish  authorities  for  med- 
ical attendance  upon  paupers  who  were  settled  in  one  parish,  but 
resident  in  another.  It  was  held  in  all  the  cases  that  a  suit  could  be 
maintained  for  services  rendered  against  the  parish  legally  bound 
to  render  them,  which  had,  after  their  rendition,  promised  to  pay 
for  them.  Some  of  the  cases  seem  to  base  the  decision  on  the 
ground  that  the  moral  obligation  resting  on  the  parish  was  suffi- 
cient to  support  its  promise;  '^®  but,  as  we  have  seen,  moral  obliga- 
tions cannot  form  a  consideration.^"  Other  cases  seem  to  go  on  the 
ground  that  there  was  a  legal  obligation  resting  on  the  parish  of 
residence  to  do  that  which  the  parish  of  settlement  might  legally 
have  been  compelled  to  do,  and  that  a  quasi  contractual  relation 
thus  arose  between  the  parties ;  or  that  there  was  knowledge  on 
the  part  of  the  defendant  parish  of  acts  from  which  a  contract 
might  be  implied,  independent  of  the  subsequent  promise.*^  There 
is,  to  say  the  least,  much  doubt  in  regard  to  this  exception.'^  In  a 
Massachusetts  case,  however,  in  which  the  plaintiff  had,  without  a 
prior  request,  paid  money  which  the  defendant  was  legally  bound 
to  pay,  the  court  held  that  a  subsequent  promise  by  the  defendant 
to  reimburse  him  was  "equivalent  to  a  previous  request,"  on  "the 
well-established  principle  that  the  subsequent  ratification  of  an  act 
done  by  a  voluntary  agent  of  another,  without  authority  from  him, 
is  equivalent  to  a  previous  authority."  ®* 

(3)  The  third  exception,  or  apparent  exception,  to  the  rule  that  a 
past  consideration  will  not  support  a  promise  is  a  substantial  and 
important  one,  and  one  about  which  there  is  no  doubt.  It  is  found 
in  those  cases  in  which  a  person  has  been  held  capable  of  reviving  an 
agreement  by  which  he  has  benefited,  but  which,  by  reason  of  some 
rule  of  law  meant  for  his  advantage,  which  he  may  waive,  is  not 
enforceable  against  him.    The  principle  upon  which  these  cases  rest 

TB  Watson  V.  Turner,  Bull.  N.  P.  147;  Atkins  v.  Banwell,  2  East,  505; 
Wing  V.  Mill,  1  Barn.  &  Aid.  105.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  79; 
Cent.  Dig.  §§  S51-381 ;  ''Paupers,"  Dec.  Dig.  {Key-No.)  §  U;  Cent.  Dig.  §§  195- 
191. 

8  0  Ante,  p.  136 ;  Mills  v.  Wyman,  3  Pick.  (Mass.)  207.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  76;  Cent.  Dig.  §§  S57~SS1 ;  "Paupers,"  Dec.  Dig.  (Key- 
A'o.)  §  U;  Cent.  Dig.  §§  195-197. 

81  Paynter  v.  Williams,  1  Cromp.  &  M.  810.  See  "Paupers,"  Dec.  Dig. 
{Key-No.)  §  U;  Cent.  Dig.  ^^195-107. 

8  2  Anson,  Cont.  (Sth  Ed.)  100-102. 

83  Gleason  v.  Dyke,  22  Pick.  (Mass.)  390.  And  see  Doty  v.  Wilson,  14  Johns. 
<N.  Y.)  382.    See  "Contracts,''  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §§  S57-SSI. 


174  CONSIDERATION  (Ch    5 

is  "tliat,  where  the  consideration  was  originally  beneficial  to  the 
party  promising,  yet,  if  he  be  protected  from  liability  by  some  pro- 
vision of  the  statute  or  common  law,  meant  for  his  advantage,  he 
may  renounce  the  benefit  of  that  law,  and  if  he  promises  to  pay  the 
debt,  which  is  only  what  an  honest  man  ought  to  do,  he  is  then 
bound  by  the  law  to  perform  it."  **  Thus  a  new  promise  made  by 
a  bankrupt  or  insolvent  who  has  been  discharged  from  debts  by  a 
certificate  of  bankruptcy,  or  by  insolvency  proceedings,  to  pay  a 
debt,  has  been  upheld  without  further  consideration.®^  So  a  prom- 
ise by  a  person,  after  becoming  of  age,  to  pay  debts  contracted  dur- 
ing infancy,  and  which  could  not  be  enforced,  is  binding  on  him.®® 
Some  courts  have  held  that  a  promise  by  a  woman*during  widow- 
hood or  after  divorce,  to  fulfill  promises  made  during  coverture,  is 
binding;®^  but  most  courts  hold  that  as  a  married  woman's  con- 
tract, unlike  an  infant's,  is  void,  and  not  merely  voidable,  her  new 
promise  after  the  death  of  her  husband,  or  after  a  divorce  has  been 

84  Parke,  B.,  in  Earle  v.  Oliver,  2  Exch.  71 ;  Shepard  v,  Rhodes,-  7  R.  I. 
470,  84  Am.  Dec.  573;  Turlington  v.  Slaughter,  54  Ala.  195;  Lonsdale  v. 
Brown,  4  Wash.  C.  C.  86,  Fed.  Cas.  No.  8,49.3.  Promise  by  the  owner  of  a 
liuilding  to  pay  for  materials  furnished  by  a  contractor  who  has  failed  to 
comply  with  the  mechanic's  lien  law.  Morse  v.  Crate,  43  111.  App.  513.  See 
'•Contracts;'  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §§  357-381. 

85Trueman  v.  Fenton,  Cowp.  544;  DUSEXBURY  v.  HOYT,  53  N.  Y.  521, 
13  Am.  Rep.  543,  Throckmorton  Cas.  Contracts,  129;  Way  v.  Sperry,  6  Cush. 
(Mass.)  23S,  52  Am.  Dec.  779;  Shippey  v.  Henderson,  14  Johns.  (N.  Y.)  178,  7 
Am.  Dec.  4.58;  Yates'  Adm'rs  v.  Hollingsworth.  5  Har.  &  J.  (]\Id.)  216;  Katz 
V.  Moessinger,  110  111.  372;. Shaw  v.  Burney,  86  N.  C.  331,  41  Am.  Rep.  461  ; 
Wislizenus  v.  O'Fallon,  91  Mo.  184,  3  S.  W.  837;  Wolffe  v.  Eberlein,  74  Ala. 
99,  49  Am.  Rep.  809;  Carey  v.  Hess,  112  Ind.  398,  14  N.  E.  235;  Knapp  v. 
Hoyt,  57  Iowa,  591,  10  N.  W.  925,  42  Am.  Rep.  59;  Griel  v.  Solomon,  82  Ala. 
85,  2  South.  322,  60  Am.  Rep.  733;  Hobough  v.  Murphy,  114  Pa.  358,  7  Atl. 
1.39;  xMurphy  v.  Crawford,  114  Pa.  496,  7  Atl.  142;  Craig  v.  Seitz,  63  Mich. 
727,  30  N.  W.  347;  Succession  of  Audrieu,  44  La.  Ann.  103,  10  South.  3SS; 
Christie  v.  Bridgman,  51  N.  J.  Eq.  331,  25  Atl.  939,  30  Atl.  429;  Higgins  v. 
Dale,  28  Minn.  126,  9  N.  W.  583.  But  not  if  debt  is  voluntarily  released. 
Stafford  v.  Bacon,  1  Hill  (N.  Y.)  532,  37  Am.  Dec.  366.  See  ante,  p.  163. 
Promise  by  third  person  to  pay  discharged  debt.  Webster  v.  Le  Compte,  74 
Md.  249,  22  AU.  232.  See  ''Bankruptcy,"  Dec.  Dig.  (Key-No.)  §  J/S^'  Cent. 
Dig.  §§  853-866;  "Contracts;'  Cent.  Dig.  §  361. 

8  6  Williams  v.  Moor,  11  Mees.  &  W.  263;  Tibbetts  v.  Gerrish,  25  N.  H.  41, 
57  Am.  Dec.  307 ;  Bliss  v.  Perryman,  1  Scam.  (111.)  484 ;  Reed  v.  Batchelder, 
1  Mete.  (Mass.)  5.59;  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245;  Heady  v. 
Boden,  4  Ind.  App.  475,  30  N.  E.  1119;  Edmond's  Case  (1586)  3  Leon.  104. 
See  "Infants;'  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  136-1^8,  157;  "Con- 
tracts;' Cent.  Dig.  §  367. 

87  Lee  V.  Muggeridge,  5  Taunt.  36  (this  was  on  the  ground  of  moral  obliga- 
tion);  Brown  v.  Bennett,  75  Pa.  420;  Sharpless'  Appeal,  140  Pa.  63,  21  Atl. 
239;  Goulding  v.  Davidson,  26  N.  Y.  604.  See  "Husband  and  Wife;'  Dec.  Dig. 
(Key-No.)  §  89;  Cent.  Dig.  §§  358-361;  "Contracts;'  Cent.  Dig.  §§  365,  366. 


§    80)  CONSIDERATION    IN    RESPECT   OF   TIME  175 

obtained,  is  without  consideration.*^  So,  also,  a  debt  barred  by  the 
statute  of  limitations  may  be  revived  by  a  new  promise  to  pay  it, 
and  the  new  promise  may  be  implied  from  a  mere  acknowledgment 
of  the  debt.*'  And  an  indorser  on  a  note,  who  has  been  discharged 
from  liability  from  want  of  notice  of  nonpayment,  may  waive  his 
discharge,"  It  has  even  been  held,  where  bills,  void  for  usury, 
were  renewed  after  the  usury  laws  had  been  repealed,  the  consider- 
ation for  the  renewal  being  the  past  loan,  that  the  new  bills  were 
valid.^^ 

There  is  undoubtedly  in  all  of  these  cases  a  moral  obligation  to 
fulfill  the  unenforceable  promise,  and  many  of  the  decisions,  both 
old  and  modern,  base  the  validity  of  the  new  promise  on  the  ground 
of  the  moral  obligation,  thereby  making  this  class  of  cases  an  ex- 
ception to  the  rule  that  a  moral  obligation  cannot  support  a  prom- 
ise.'^   If  the  efifect  of  these  cases  is  to  make  such  an  exception,  it 

88  Hay  ward  v.  Barker,  52  Vt  429,  36  Am.  Rep.  762;  Porterfield  v,  Butler, 
47  Miss.  165,  12  Am.  Rep.  329;  Meyer  v.  Howarth,  8  Adol.  &  El.  467;  Waters 
V.  Bean,  15  Ga.  358 ;  Putnam  v.  Tennyson,  50  Ind.  456 ;  Musick  v.  Dodson,  76 
Mo.  624,  43  Am.  Rep.  780;  Kent  v.  Rand,  64  N.  H.  45,  5  Atl.  760;  Valentine 
V.  Bell,  66  Vt.  2S0,  29  Atl.  251 ;  Wilcox  v.  Arnold,  116  N.  C.  708,  21  S.  E.  434 ; 
Thompson  v.  Hudgins,  116  Ala.  93,  22  South.  632;  Holloway's  Assignee  v. 
Rudy  (Ky.)  60  S.  W,  650.  A  promise  by  a  married  woman,  having  a  separate 
estate,  to  pay  for  necessaries  furnished  her  on  the  credit  of  such  estate,  is  a 
sufficient  consideration  for  a  new  promise  after  the  death  of  her  husband. 
Sherwin  v.  Sanders,  59  Vt  499,  9  Atl.  239,  59  Am.  Rep.  750.  See  "Husband 
and  Wife,"  Dec.  Dig.  (Key-No.)  §  89;  Cent.  Dig.  §§  S58-361;  "Contracts," 
Cent.  Dig.  §§  365,  S6G. 

8  9  Ilsley  V.  Jewett,  3  Mete.  (Mass.)  439;  Keener  v.  Crull,  19  111.  189;  Walker 
V,  Henry,  36  W.  Va.  100,  14  S.  E.  440;  Little  v.  Blunt,  9  Pick.  (Mass.)  488; 
Pittman  v.  Elder,  76  Ga.  371 ;  Pierce  v.  Wimberly,  78  Tex.  187,  14  S.  W.  454 ; 
Hall  V.  Bryan,  50  Md.  194;  Perkins  v.  Cheney,  114  Mich.  567,  72  N.  W.  595, 
68  Am.  St.  Rep.  495.  But  a  deceased  person's  debt  which  is  barred  will  not 
support  his  widow's  promise  to  pay  it.  Sullivan  v.  Sullivan,  99  Gal.  187,  33 
Pac.  862.  See  "lAmitation  of  Actions,"  Dec.  Dig.  (Key-No.)  §  145;  Cent.  Dig. 
I  592. 

9  0  Ross  T.  Hurd,  71  N.  Y.  14,  27  Am.  Rep.  1;  Glidden  v.  Chamberlin,  167 
Mass.  486,  46  N.  E.  103,  57  Am.  St  Rep.  479.  See  "Bills  and  Notes,"  Dec.  Dig. 
(Key-No.)  §§  422,  423;  Cent.  Dig.  §§  1196-1222. 

91  Flight  V.  Reed,  1  Hurl.  &  C.  703;  Hammond  v.  Hopping,  13  Wend.  (N. 
Y.)  505.  See  Barnes  v.  Hedley,  2  Taunt  184.  But  see  Ludlow  v.  Hardy,  38 
Mich.  690;  ante,  p.  136;  and  dissenting  opinion  of  Martin,  B.,  in  Flight  v. 
Reed,  supra.  See  "Bills  and  Notes,"  Dec.  Dig.  (Key-No.)  §  139;  Cent.  Dig. 
§  354;  "Usury,"  Dec.  Dig.  (Key-No.)  §  67;  Cent.  Dig.  §§  14O,  14I;  "Contracts," 
Cent.  Dig.  §  579. 

92  Edmond's  Case  (1580)  3  Leon.  164 ;  Wislizenus  v.  O'Fallon,  91  Mo.  184, 
3  S.  W.  837 ;  Turlington  v.  Slaughter,  54  Ala.  195 ;  Musick  v.  Dodson,  76  Mo. 
624,  43  Am.  Rep.  780;  Carey  v.  Hess,  112  Ind.  398,  14  N.  E.  235;  Hobough 
V.  Murphy,  114  Pa.  358,  7  Atl.  139;  Murphy  v.  Crawford,  114  Pa.  496,  7  Atl. 
142;  Crai?  v.  Seitz,  63  Mich-  727,  30  N.  W.  347;   Succession  of  Audrieu,  44 


176  CONSIDERATION  (Ch.  5 

is  unfortunate,  to  say  the  least,  for  there  is  much  dicta  to  the  effect 
that  a  moral  obligation  can  never  support  a  promise.®"  It  would 
seem  much  better  to  base  the  validity  of  such  promises,  not  on  the 
moral  obligation,  but  on  the  prior  agreement,  supported  by  a  valua- 
ble consideration,  and  the  right  of  the  promisor  to  waive  the  techni- 
cal rules  of  law,  meant  for  his  benefit,  and  which  render  it  unen- 
forceable. 

La.  Ann.  103,  10  South.  388.  See  post,  p.  87U.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  79;  Gent.  Dig.  §§  S57~S81. 

93  Mills  V.  Wyman,  3  Pick.  (Mass.)  207.    And  see  ante,  p.   ISO  et  seq.,  and 
cases  cited.    See  "Contracts,"  Dec.  Dig.  (Key-No,)  §  79;  Cent.  Dig.  §§  357-S81. 


CAPACITY   OF   PART1B3 


17T 


CHAPTER  VI 
CAPACITY  OF  PARTIES. 

81.  ■  In  General. 

82-83.  Political  Status— States  and  United  States. 

84.  Foreign  States  and  Sovereigns. 

85-88.  Aliens. 

89.  Convicts. 

90.  Professional   Status. 
91-94.  Infants— In  General. 
95-97.  Liability  for  Necessaries. 

98.  Katification  and  Avoidance. 

99-101.  Who  may  Avoid  Contract. 

102-104.  Time  of  Avoidance. 

105-107.  What  Amounts  to  Ratification. 

108.  What  Amounts  to  Disaflirmance. 

109.  Extent  of  Ratification  or  Disaffirmance. 
110-111.  Return  of  Consideration. 

112-114.  Effect  of  Ratification  and  Disaffirmance. 

115-116.  Torts  in  Connection   with  Contracts. 

117.  Insane  Persons — In  General. 
118-121.  Ratification  and  Avoidance. 

122-123.  Drunken  Persons. 

124.  Married  Women. 

125-128.  Corporations. 


Thus  far  we  have  been  dealing  with  the  contract  itself,  and  those 
elements  in  its  formation  which  are  essential  to  give  it  even  a 
prima  facie  validity.  Communication  by  offer  and  acceptance,  and 
form  or  consideration,  or,  in  some  cases,  both  form  and  considera- 
tion, are  necessary  to  every  agreement  that  is  to  be  considered  by 
courts  of  law;  but  this  is  not  all.  When  we  have  constructed  an 
apparently  binding  contract,  it  is  necessary,  before  we  can  pro- 
nounce finally  upon  its  validity,  to  look  to  the  parties  to  it,  and  ask 
who  made  it,  under  what  circumstances,  and  with  what  object.  In 
other  words,  we  have  to  inquire  whether  the  parties  were  capable 
of  contracting,  whether  their  apparent  consent  was  genuine,  and 
whether  their  object  was  legal. ^  In  this  chapter  we  shall  consider 
the  question  of  the  capacity  of  the  parties. 

1  See  Anson,  Cont.  (4th  Ed.)  102. 
Clark  Cont.(3d  Ed.)— 12 


178  CAPACITY   OF   PARTIES  (Ch.  6 


IN  GENERAL 

81.  Incapacity  to  contract  may  arise  from  the  following  causes: 

(a)  Political  status.     In  this  connection  we  will  consider  con- 

tracts by 

(1)  The  United  States  or  state  governments; 

(2)  Foreign  sovereigns  or  states,  and  their  representatives; 

(3)  Aliens; 

(4)  Convicts. 

(b)  Professional  status,  as  in  the  case  of  professional  contracts 

by 

(1)  Attorneys;  , 

(2)  Physicians;  and 

(3)  In  some  jurisdictions,  other  professional  persons. 

(c)  Youth,  as  in  the  case  of  infants. 

(d)  Permanent  or  temporary  mental  aberration,  as  in  the  case  of 

(1)  Idiocy; 

(2)  Insanity; 

(3)  Drunkenness. 

(e)  Merger  of  capacity,  as  in  case  of  married  women. 

(f)  Artificiality  of  construction,  as  in  the  case  of  corporations. 


POLITICAL  STATUS— STATES  AND  UNITED  STATES 

82.  The   United   States  and  the  states  may  enter  into   contracts 

through  their  authorized  agents,  but  only  in  furtherance 
of  the  objects  of  government,  and  subject  to  the  limita- 
tions of  the  constitution. 

83.  They  may  sue  on  their  contracts,  but  cannot  be  sued  unless 

they  submit  thereto.  This,  however,  they  have  very  gen- 
erally done  by  statutory  or  constitutional  provisions. 

The  power  of  the  United  States  government  and  the  government 
of  a  state  to  enter  into  contracts  in  furtherance  of  objects  for  which 
the  government  was  established,  and  not  prohibited  by  constitu- 
tional limitations,  is  an  incident  to  the  general  right  of  sovereign- 
ty. The  question  arose  in  the  supreme  court  of  the  United  States 
in  a  case  in  which  it  was  held  that  a  voluntary  bond,  taken  by  au- 
thority ot  the  proper  officers  of  the  treasury  department  intrusted 
with  the  disbursement  of  public  moneys  to  secure  the  fidelity  in 
official  duties  of  a  receiver  or  disbursing  agent,  was  a  binding  con- 
tract betw,*en  him  and  his  sureties  and  the  United  States,  though 


§§    82-83)  STATES    AND   UNITED   STATES  179 

the  bond  was  not  prescribed  by  any  positive  law.  "Upon  full  con- 
sideration of  this  subject,"  said  the  court,  "we  are  of  opinion  that 
the  United  States  have  such  capacity  to  enter  into  contracts.  It 
is,  in  our  opinion,  an  incident  to  the  general  right  of  sovereignty ; 
and,  the  United  States  being  a  body  politic,  may,  within  the  sphere 
of  the  political  powers  confided  to  it,  and  through  the  instrumental- 
ity of  the  proper  department  to  which  those  powers  are  confided, 
enter  into  contracts  not  prohibited  by  law,  and  appropriate  to  the 
proper  exercise  of  those  powers.  *  *  *  To  adopt  a  different 
principle  would  be  to  deny  the  ordinary  rights  of  sovereignty,  not 
merely  to  the  general  government,  but  even  to  the  state  govern- 
ments within  the  proper  sphere  of  their  own  powers,  unless  brought 
into  operation  by  express  legislation.  A  doctrine  to  such  an  ex- 
tent is  not  known  to  this  court  as  ever  having  been  sanctioned  by 
any  judicial  tribunal."  ^  The  same  doctrine  applies  to  contracts 
by  the  state  government.' 

A_cgntra^LJ]J2wever^  to  J)ind  the  gQ:^eiii^  must  be  made  by 
its  authorized  agent,  and  parties  dealing  with  its  agent  must  see  at 
tlieii^peril  that  the  agent  has  actual  authority.*  Likewise,  it  must 
be^made  in  the  form  prescribed  by  statute,  if  any.'' 

Where  the  government  enters  into  a  contract,  whether  a  nego- 
tiable instrument  or  otherwise,  which  it  has  authority  to  make,  it  is 
bound  in  any  court  to  whose  jurisdiction  it  submits  by  the  same 
principles  that  govern  individuals  in  their  relation  to  such  con- 
tracts." 

2  United  States  v.  TIngey,  5  Pet.  115,  8  L.  Ed.  66.  And  see  United  States 
V.  Lane,  3  McLean,  365,  Fed.  Cas.  No.  15,559.  See  "States,"  Dec.  Dig.  {Key- 
No.)  §§  90,  91;  Cent.  Dig.  §  S9;  "United  States,"  Dec.  Dig.  (Key-No.)  §  50; 
Cent.  Dig.  §  42. 

3  Danolds  v.  State,  89  N.  Y.  37,  42  Am.  Rep.  277 ;  Dikes  v.  Miller,  25  Tex. 
Supp.  281,  78  Am.  Dec.  571.  See  "States,"  Dec.  Dig.  (Key-No.)  §§  90,  91; 
Cent.  Dig.  §  89. 

4  The  Floyd  Acceptances,  7  Wall.  666,  19  L.  Ed.  169 ;  Whiteside  v.  United 
States,  93  U.  S.  247,  23  L.  Ed.  882.  See  Tiffany,  Ag.  201.  By  an  act  of 
Congress  [Act  May  1,  1820,  c.  52,  §  6,  3  St  at  L.  568]  no  contract  may  be 
made  by  the  secretary  of  state  or  treasury,  or  the  department  of  war  or  navy, 
except  under  a  statute  authorizing  it  Fowler  v.  United  States,  3  Ct  CI.  43. 
See  "United  States,"  Dec.  Dig.  (Key-No.)  §  60;  Cent.  Dig.  §  ^S. 

6  Contracts  on  behalf  Of  the  United  States  are  required  by  various  acts 
of  Congress  to  be  in  writing  and  signed  by  the  contracting  parties,  and  such 
statutes  have  been  held  mandatory,  rendering  void  contracts  not  made  in 
compliance  therewith.  Clark  v.  United  States,  95  U.  S.  539,  24  L.  Ed.  518. 
And  see  Camp  v.  United  States,  113  U.  S.  648,  5  Sup.  Ct  687,  24  L.  Ed.  lOSl. 
See  "United  States,"  Dec.  Dig.  (Key-No.)  §  65 ;  Cent.  Dig.  §  48. 

8  The  Floyd  Acceptances,  supra ;  Danolds  v.  State,  supra ;  Patton  v.  Gilmer, 
42  Ala.  548,  94  Am.  Dec.  665;  United  States  v.  Ingate  (C.  C.)  48  Fed.  251. 
See  "United  States,"  Dec.  Dig.  (Key-No.)  §  70;  Cent.  Dig.  §  53. 


180  CAPACITY   OP   PARTIES  (Ch.  6 

At  common  law  the  sovereign  cannot  be  sued  without  his  con- 
sent, and  this  doctrine  prevents  suits  against  a  state  or  against  the 
United  States,  in  the  absence  of  permission  by  virtue  of- some  statu- 
tory or  constitutional  provision.^  Thus  a  bond  or  other  contrac- 
tual obligation  of  a  state  may  not  be  enforced  by  a  private  individ- 
ual,^ but  under  the  provision  of  the  federal  constitution  conferring 
upon  the  United  States  supreme  court  jurisdiction  in  controversies 
between  states,  it  may  be  enforced  by  another  state."  There  are, 
however,  in  most  of  the  states,  provisions  allowing  suit  in  some 
form  by  individuals  against  the  state;  ^°  and  the  United  States  may 
be  proceeded  against  in  the  court  of  claims, ^^  and  in  some  cases  in 
the  other  federal  courts.^*  A  state  or  the  United  States  has  the 
same  right  as  an  individual  to  maintain  an  action  on  a  contract 
made  with  it,^'  and  it  is  the  proper  party  to  maintain  such  an  action. 

T  United  States  v.  Clarke,  8  Pet.  436,  8  L.  Ed.  1001 ;  Troy  &  G.  R.  Co.  v. 
Com.,  127  Mass.  43 ;  Ottawa  County  v.  Aplin,  69  Mich.  1,  36  N.  W.  702 ;  Presi- 
dent, etc.,  of  Michigan  State  Bank  v.  Hammond,  1  Doug.  (Mich.)  527 ;  Same  v. 
Hastings,  1  Doug.  (Mich.)  225,  41  Am.  Dec.  549 ;  Pattison  v.  Shaw,  6  Ind.  377 ; 
Lowry  v.  Thompson,  25  S.  C.  416,  1  S.  E.  141;  People  v.  Talmage,  6  Cal.  257; 
Taylor  v.  Hall,  71  Tex.  206,  9  S.  W.  148;  Galbes  v.  Glrard  (C.  C.)  46  Fed. 
500 ;  Ferris  v.  Land  Co.,  94  Ala.  557,  10  South.  607,  33  Am.  St.  Rep.  146.  An 
action  against  a  state  or  United  States  officer,  which  is  in  effect  against  the 
state  or  the  United  States,  Is  within  the  rule.  Ottawa  County  v.  Aplin,  69 
Mich.  1,  36  N.  W.  702;  Taylor  v.  Hall,  71  Tex.  206,  9  S.  W.  148;  Aplin  v. 
Board,  73  Mich.  182,  41  N.  W.  223,  16  Am.  St.  Rep.  576;  Mills  I'ub.  Co.  v. 
Larrabee,  78  Iowa,  97,  42  N.  W.  593 ;  North  Carolina  v.  Temple,  134  U.  S.  22, 
10  Sup.  Ct.  509,  33  L.  Ed.  849;  Brown  University  v.  Rhode  Island  College 
<C.  C.)  56  Fed.  55.  See  "United  States,"  Dec.  Dig.  (Key-No.)  §  125;  Cent.  Dig. 
§§  113,  111 

8  Const  U.  S.  Amend.  11 ;  Hans  v.  Louisiana,  134  U.  S.  1,  10  Sup.  Ct.  504, 
33  L.  Ed.  842.  See  "States,"  Dec.  Dig.  (Keg-No.)  §  191;  Cent.  Dig.  §§  179-184; 
"Corporations,"  Cent.  Dig.  §  1910. 

B  Const.  U.  S.  art  3,  §  2,  cl.  1 ;  South  Dakota  v.  North  Carolina,  192  U.  S. 
280,  24  Sup.  Ct  2G9,  48  L.  Ed.  448.  See  "States,"  Dec.  Dig.  (Keg-No.)  §  191; 
Cent.  Dig.  §§  119-181 

10  Wesson  v.  Commonwealth,  144  Mass.  60,  10  N.  E.  762;  Green  v.  State,  73 
Cal.  29,  11  Pac.  602,  14  Pac.  610;  Hoagland  v.  State  (Cal.)  22  Pac.  142;  Board 
of  Education  of  Granville  County  v.  State  Board,  106  N.  C.  81,  10  S.  E.  1002. 
See  "States,"  Dec.  Dig.  (Key-No.)  §  191;  Cent.  Dig.  §§  179-184- 

iiNicholl  V.  United  States,  7  Wall.  122,  19  L.  Ed.  125;  Finn  v.  United 
States,  123  U.  S.  227,  8  Sup.  Ct  82,  31  L.  Ed.  128 ;  United  States  v.  Cumming, 
130  U.  S.  452,  9  Sup.  Ct  583,  32  L.  Ed.  1029.  See  "Courts,"  Dec.  Dig.  (Key- 
No.)  §  U9;  Cent.  Dig.  §§  1163-1181. 

izTorrey  v.  United  States  (C.  C.)  42  Fed.  207;  Bo  we  v.  United  States,  Id. 
761.    See  "Courts,"  Dec.  Dig.  (Key-No.)  §  302;  Cent.  Dig.  §§  843,  986. 

13  state  V.  Grant  10  Minn.  39  (Gil.  22);  State  v.  Burkeholder,  30  W,  Va. 
593,  5  S.  E.  439 ;  People  v.  City  of  St  Louis,  5  Oilman  (111.)  3j1,  48  Am.  Dec. 
339;  Spencer  v.  Brockway,  1  Ohio,  259,  13  Am.  Dec.  615;  United  States  v. 
Holmes  (C.  C.)  105  Fed.  41.     See  "States,"  Dec.  Dig.  (Key-No.)  §  191;  Cent. 


§§    85-88)  ALIENS  181 


SAME— FOREIGN  STATES  AND  SOVEREIGNS 

84.  Foreign  sovereigns  and  states  and  their  representatives  may 

make  contracts  and  sue  thereon  in  our  courts,  but  they 
.  cannot  be  sued  unless  they  submit. 

Foreign  states  and  sovereigns  and  their  representatives,  and  the 
officials  and  household  of  their  representatives,  are  not  subject  to 
the  jurisdiction  of  our  courts  unless  they  submit  to  it.^*  A  con- 
tract, therefore,  entered  into  with  such  persons,  cannot  be  enforced 
against  them  unless  they  so  choose,  but  it  may  be  enforced  by 
them." 

SAME— ALIENS 

85.  An  alien,  not  an  alien  enemy,  has  in  most  jurisdictions  the 

some  power  to  contract  that  a  subject  has,  and  may  in 
like  manner  sue  and  be  sued  on  his  contracts.  In  some 
jurisdictions  he  cannot  acquire  or  hold  land. 

86.  ALIEN  ENEMIES — An  alien  enemy  cannot,  as  a  rule,  with- 

out leave  of  the  government,  make  any  contract  with  a 
subject,  or  enforce  any  existing  contract,  during  the  con- 
tinuance of  hostilities. 

87.  He  may  be  sued  on  existing  contracts,  and  in  such  a  case  he 

may  defend. 

8S.  Pre-existing  contracts  are  not  dissolved  by  the  war  unless  they 
are  of  a  continuing  nature. 

An  alien  is  said  to  be  a  person  born  out  of  the  jurisdiction  of  the 
United  States,  subject  to  some  foreign  government,  who  has  not 
been  naturalized  under  their  constitution  and  laws,^^  but  under 
our  statutes  this  is  not  strictly  true.     It  is  not  within  the  scope 

Dig.  §§   119-18It;   ''United  States,"   Dec.  Dig.   {Kejj-No.)   f  125;  Cent.   Dig.  §§ 
lis,  llJf. 

-  14  Taylor  v.  Best,  14  C.  B.  487.     See  "Courts,"  Dec.  Dig.  (Key-No.)  §  321; 
Cent.  Dig.  §§  SJi5-S.'i9. 

15  See  Kiug  of  Prussia  v.  Kuepper's  Adm'r,  22  Mo.  550,  66  Am.  Dec.  639; 
The  Sapphire  v.  Napoleon  III,  11  Wall.  164,  20  L.  Ed.  127;  Republic  of 
Colombia  v.  Cauca  Co.  (C.  C.)  106  Fed.  337;  King  of  Spain  v.  Oliver,  Fed. 
Cas.  No.  7,814,  2  Wash.  (C.  C.)  429.  See  "Courts,''  Dec.  Dig.  (Key-No.)  § 
S21;    Cent.  Dig.  §§  8^5-81,9. 

i«2  Kent,  Comm.  .jO;  Dawson  v.  Godfrey,  4  Cranch,  321,  2  L.  Ed.  634; 
Alnslie  v.  Martin,  9  Mass.  45&  See  "Aliens,"  Dec.  Dig.  (Key-No.)  |  1;  Cent 
Dig.  §  /. 


182  .  CAPACITY   OF   PARTIES  '  (Cll.  6 

of  this  work  to  go  fully  into  this  question.  The  statutes  and 
decisions  must  be  consulted. ^^  The  right  of  aliens  to  take,  hold, 
and  dispose  of  property,  real  or  personal,  is  generally  regulated 
by  the  states.  In  some  states  aliens  are  prohibited  from  acquiring 
and  holding  real  property,  while  in  others  nonresidents  are  not 
given  such  right,  while  residents  are ;  but  in  many  states  aliens^ 
whether  resident  or  not,  have  the  same  rights  in  this  respect  as 
native-born  subjects.^*  In  most,  if  not  in  all,  the  states  they  have 
the  power  to  make  and  enforce  contracts  in  respect  to  personal 
property,  and  such  contracts  may  be  enforced  against  them.^* 
The  rule  does  not  apply  to  alien  enemies.  ^  ^ 

Alien  Enemies  ^^ 

An  alien  enemy  is  one  who  is  the  subject  or  citizen  of  some 
hostile  state  or  power.  War  suspends  all  commercial  intercourse 
between  the  belligerent  countries,  except  so  far  as  may  be  allowed 
by  the  sovereign  authority,  and  all  contracts  which  tend  to  in- 
crease the  resources  of  the  enemy  or  involve  commercial  dealing 
between   the  two  countries   are  prohibited.^^      Nor   can   an   alien 

IT  As  to  who  are  aliens,  see  State  ex  rel.  Thayer  v.  Boyd,  31  Neb.  682,  48 
N.  W.  739,  51  N.  W.  602 ;  Boyd  v.  Nebraska  ex  rel.  Thayer,  143  U.  S.  135,  12 
Sup.  Ct.  375,  36  L.  Ed.  103 ;  State  v.  Andriano,  92  Mo.  70,  4  S.  W.  263 ;  Charles 
Green's  Son  v.  Salas  (C.  C.)  31  Fed.  106 ;  Ware  v.  Wisner  (C.  C.)  50  Fed.  310 ; 
City  of  Minneapolis  v.  Reum,  6  C.  C.  A.  31,  56  Fed.  576;  Comitis  v.  Parker- 
son  (C.  C.)  56  Fed.  556,  22  L.  R,  A.  148;  minor  children  of  naturalized  for- 
eigners. State  V.  Andriano,  92  Mo.  70,  4  S.  W.  263;  Behrensmeyer  v.  Kreitz, 
135  111.  591,  26  N.  E.  704;  State  ex  rel.  Thayer  v.  Boyd,  31  Neb.  682,  48  N.  W. 
739,  51  N.  W.  602.  Alien  woman  marrying  a  citizen  becomes  a  citizen.  Ware 
V.  Wisner  (C.  C.)  50  Fed.  310.  Minor  children  of  foreign  parents,  whose 
mother,  after  the  death  of  the  father,  marries  a  citizen,  become  citizens. 
Kreitz  v.  Behrensmeyer,  125  111.  141,  17  N.  E,  232,  8  Am.  St.  Rep.  349.  Chil- 
dren born  abroad  of  American  citizens  are  citizens.  Ware  v.  Wisner  (C.  C.) 
50  Fed.  310.    See  "Aliens,"  Dec.  Dig.  {Key-No.)  §  1;  Cent.  Dig.  §  1. 

18  See  Milliken  v.  Barrow  (C.  G.)  55  Fed.  148;  Manuel  v.  Wulff,  152  U.  S. 
505,  14  Sup.  Ct.  651,  38  L.  Ed.  532;  McCreery's  Lessee  v.  AUender,  4  Har.  & 
McPI.  (Md.)  409;  Zundell  v.  Gess,  73  Tex.  144,  10  S.  W.  693;  Wunderle  v. 
Wunderle,  144  111.  40,  33  N.  E.  195,  19  L.  R.  A.  84;  Furenes  v.  Mickleson,  86 
Iowa,  508,  53  N.  W.  416;  Bennett  v.  Hibbert,  88  Iowa,  154,  55  N.  W.  93. 
See  "Aliens,"  Dec.  Dig.  (Key-No.)  §  6;  Cent.  Dig.  §§  5-10. 

19  Taylor  v.  Carpenter,  3  Story,  458,  Fed.  Cas.  No.  13,784;  Franco-Texan 
Land  Co.  v.  Chaptive  (Tex.  Sup.)  3  S.  W.  31.  See  "Aliens,"  Dec.  Dig.  {Key-No.} 
§§  U,  16;  Cent.  Dig.  §§  50,  61-66. 

2  0  Post,  p.  361. 

21  Kershaw  v.  Kelsey,  100  Mass.  561,  97  Am.  Dec.  124,  1  Am.  Rep.  142; 
United  States  v.  Grossmayer,  9  Wall.  72,  19  L.  Ed.  627;  New  York  Life, Ins. 
Co.  V.  Davis,  95  U.  S.  425,  24  L.  Ed.  453;  W^illiams  v.  Paine,  169  U.  S.  55, 
18  Sup.  Ct.  279,  42  L.  Ed.  658;  O'Mealey  v,  Wilson,  1  Camp.  482;  Phillips 
V.  Hatch,  1  Dill.  571,  Fed.  Cas.  No.  11,094 ;  Hill  v.  Baker,  32  Iowa,  302,  7  Am. 
Rep.  193 ;  Masterson  v.  Howard,  18  Wall.  99,  21  L.  Ed.  764 ;  Mutual  Ben.  Life- 


§  89)  CONVICTS  183 

enemy  enforce  any  existing  contract  *'  during  the  continuance  of 
hostilities.  These  rules  were  applied  to  contracts  between  the 
respective  citizens  of  the  Northern  and  Southern  states  during 
the  Civil  War.^*  Though  an  alien  enemy  cannot  sue  on  con- 
tracts during  the  continuance  of  hostilities,  he  may  be  sued,  and 
in  such  case  he  may  defend.^* 

Same — Pre-existing  Contracts 

Whether  a  pre-existing  contract  is  dissolved  or  not  by  the  war 
depends  upon  whether  it  is  essentially  antagonistic  to  the  laws 
governing  a  state  of  war.  If  it  is  of  a  continuing  nature,  as  in 
the  case  of  a  partnership,  or  of  an  executory  character  merely, 
and  in  the  performance  of  its  essential  features  would  violate 
such  laws,  it  would  be  dissolved ;  but,  if  not,  and  rights  have 
become  vested  under  it,  the  contract  will  either  be  qualified,  oi 
its  performance  suspended,  according  to  its  nature,  so  as  to  strip 
it  of  its  objectionable  features,  and  save  such  rights.  The  ten- 
dency of  adjudication  is  to  preserve,  and  not  to  destroy,  con- 
tracts existing  before  the  war.^* 

SAME— CONVICTS 

89.  In  this  country  a  convict  can  in  most  jurisdictions,  unless  pro- 
hibited by  statute,  make  contracts,  and  sue  and  be  sued 
thereon. 

At  common  law  a  person  convicted  of  treason  or  felony  was 
said  to  be  civilly  dead.    He  was  not  incapable  of  contracting,  and 

Ins.  Co.  V.  Hillyard,  37  N,  J.  Law,  444,  18  Am.  Rep.  741 ;  Wright  v.  Graham, 
4  W.  Va.  430;  Habricht  v.  Alexander,  1  Woods,  413,  Fed.  Cas.  No.  5,SS6;  De 
Jarnette  v.  De  Giverville,  56  Mo.  440.  See  "War"  Dec.  Dig.  {Key-'So.)  §  15; 
Cent.  Dig.  §§  61,-19. 

22  Brooke  v.  Filer,  35  Ind.  402;  Blackwell  v.  Willard,  65  N.  C.  555,  6  Am. 
Rep.  749;  Semmes  v.  Insurance  Co.,  36  Conn.  543,  Fed.  Cas.  No.  12,651.  Set 
"War,"  Dec.  Dig.  (Key-No.)  §  10;  Cent.  Dig.  §§  26-36;  "Insurrection,"  Cent. 
Dig.  §  S. 

23  See  cases  in  preceding  notes. 

I*  Dorsey  v.  Thompson,  37  Md.  25;  McVeigh  v.  United  States,  11  Wall.  259, 
20  L.  Ed.  80;  Mixer  v.  Sibley,  53  111.  61;  McNair  v.  Toler,  21  Minn.  175.  See 
Clarke  v.  Morey,  10  Johns.  (N.  Y.)  69.  See  "War,"  Dec.  Dig.  (Key-No.)  §  10; 
Cent.  Dig.  §§  26-36. 

25  Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard,  37  N.  J.  Law,  444,  18  Am.  Rep. 
741;  Griswold  v.  Waddington,  15  Johns.  (N.  Y.)  57;  Semmes  v.  City  Fire  Ins. 
Co.,  36  Conn.  543,  Fed.  Cas.  No.  12,651 ;  Bank  of  New  Orleans  v.  Matthews, 
49  N.  Y.  12;  Cohen  v.  Insurance  Co.,  50  N.  X-  010,  10  Am.  Rep.  522;  Washing- 
ton University  v.  Finch,  18  Wall.  100,  21  L.  Ed.  818;  Whelan  v.  Cook,  29 
Md.  1 ;  Dorsey  v.  Kyle,  30  Md.  512,  96  Am.  Dec.  617;  Dorsey  v.  Thompson,  37 
Md.  25.     See  "War,"  Dec.  Dig.  (Key-No.)  §  10;  Cent.  Dig.  §§  26-SG. 


184  CAPACITY   OF   PARTIES  (Ch.  S 

his  contracts  could  be  enforced  against  him;  but  he  could  not 
invoke  the  aid  of  the  courts  for  their  enforcement.^*  The  subject 
is  now  regulated  in  England  by  statutes,  which  declare  convicted 
felons  incapable  of  making  any  contract,  and  provide  for  the 
transfer  of  their  property  to  trustees,  who  are  given  power  to 
make  contracts  in  regard  to  it.^^ 

With  us  the  common-law  rule  is  not  recognized  to  any  extent, 
and  a  convict  undergoing  a  sentence  of  imprisonment,  or  even 
awaiting  execution  of  a  sentence  of  death,  may,  in  the  absence  of 
statutory'  restrictions,  enter  into  contracts,  and  sue  or  be  sued 
thereon.**  In  some  states,  however,  there  are  statutes  declaring 
that  a  sentence  of  imprisonment  in  the  penitentiary  shall  suspend 
all  civil  rights,  and  if  for  life  shall  render  the  convict  civilly  dead; 
and  such  statutes  have  been  construed  to  impose  the  same  conse- 
quences as  civil  death  at  common  law.^®  In  some  states,  also, 
the  statutes  provide,  as  in  England,  for  the  transfer  of  the  convict's 
property  to  trustees,  with  power  to"  administer  it  and  make  con- 
tracts in  regard  to  it.'**  The  disability  continues  only  during  the 
imprisonment,  and  upon  his  receiving  a  pardon  or  serving  out 
his  sentence  the  convicted  person  is  restored  to  the  control  of  his 
property  and  his  power  to  contract.'^ 

PROFESSIONAL  STATUS 

90.  In  England  a  barrister  cannot  sue  upon  a  contract  for  com- 
pensation for  his  services,  but  this  disability  does  not 
exist  in  the  United  States. 

In  England,  a  barrister  cannot  sue  for  fees  due  him  for  services 
rendered  in  the  ordinary  course  of  his  professional  duties,  either 

2  6  Kynnaird  v.  Leslie,  L.  R.  1  C.  P.  389,  12  Jur.  N.  S.  4G8.  35  L.  J.  C.  P. 
•_'1^G,  14  L.  T.  Rep.  N.  S.  756,  14  Wkly.  Rep.  761.  And  see  Avery  v.  Everett,  110 
X.  Y..317,  18  N.  E.  148,  1  L.  R.  A.  264,  6  Am.  St.  Rep.  36S.  See  ''Convicts," 
Dec.  Dig.  (Key -No.)  §  ^;  Cent.  Dig.  §  S. 

iiT54  Geo.  Ill,  c.  45;  33  &  34  Vict.  c.  23.  See  Avery  v.  Everett,  supra. 
See  "Convicts,"  Dec.  Dig.  {Key-No.)  §§  S,  4;  Cent.  Dig.  §§  2,  S,  8. 

28  piatner  v.  Sherwood,  6  Johns.  Ch.  (N.  Y.)  118;  Willingham  v.  King,  23 
Fla.  478,  2  South.  851 ;  In  re  Estate  of  Nerac,  35  Cal,  392,  95  Am.  Dec.  111. 
And  see  Dade  Coal  Co.  v.  Haslett,  S3  Ga.  549,  10  S.  E.  435.  See  "Convicts," 
Dec.  Dig.  {Key-No.)  §  4;  Cent.  Dig.  §  S. 

28  Avery  v.  Everett,  supra;  Smith  v.  Becker,  62  Kan.  541,  64  Pac.  70,  53  L. 
R.  A.  141 ;  In  re  Estate  of  Nerac,  35  Cal.  392,  95  Am.  Dec.  111.  See  "Con- 
victs," Dec.  Dig.  {Key-No.)  §  J,;  Cent.  Dig.  §  S. 

80  Smith  V.  Becker,  supra ;  Williams  v.  Shackelford,  97  Mo.  322,  11  S.  W.  222, 
See  "ComHcts,"  Dec.  Dig.  {Key-No.)  §  4;  Cent.  Dig.  §  5. 

31  In  re  Deming,  10  Johns.  (N.  Y.)  232.  See  "Convicts,"  Dec.  Dig.  (Key-No.) 
i  4;  Cent.  Dig.  §  3. 


§§   91-94)  INFANTS  185 

upon  an  implied  or  an  express  contract.  Formerly  a  physician 
was  so  far  in  the  same  position  as  a  barrister  that,  until  the  law 
was  changed  by  statute,  the  rendition  of  services  on  request  rais- 
ed no  implied  promise  to  pay  for  them,  though  the  patient  might 
bind  himself  by  express  contract.  But  these  disabilities  are  not 
to  any  extent  recognized  in  this  country. ^^  There  are,  indeed,  in 
most,  if  not  all,  the  states,  statutes  prescribing  certain  requisites 
to  entitle  a  physician,  attorney,  and  certain  other  professional  men 
to  practice,  such  as  the  taking  out  of  a  license ;  and,  until  he  has 
complied  with  the  statute,  he  has  no  right  to  practice,  and  con- 
tracts made  with  him  for  professional  services  are  void.  This, 
however,  is  properly  for  treatment  later.^^ 


INFANTS— IN  GENERAL 

91.  Some  contracts  of  an  infant  are  valid,  and  a  few,  in  some  juris- 

dictions, are  absolutely  void,  but  most  of  his   contracts 
are  simply  voidable  at  his  option. 

92.  VALID  CONTRACTS— The  valid  contracts  of  an  infant  are: 

(a)  Contracts  created  by  law,  or  quasi  contracts. 

(b)  Contracts  entered  into  under  authority  or  direction  of  law. 

(c)  Contracts  made  in  order  to  do  what  he  was  legally  bound 

to  do,  and  could  have  been  compelled  to  do. 

93.  VOID  CONTRACTS— In  some  jurisdictions  a  contract  of  an 

infant  which  is  manifestly  and  without  doubt  to  his  preju- 
dice is  void. 

94.  VOIDABLE  CONTRACTS— The  tendency  is  to  hold  all  con- 

tracts  other  than  valid  ones  simply  voidable  at  the  in- 
fant's option. 

In  General 

An  infant,  at  common  law,  is  a  person  under  twenty-one  years 
of   age,   whether  male  or   female;    but  in    some   jurisdictions,   by 

SI  Vilas  V.  Downer,  21  Vt  419;  Garrey  v.  Stadler,  67  Wis.  248,  30  N.  W. 
7S7,  58  Am.  Rep.  877 ;  Price  v.  Hay,  132  111.  543,  24  N.  E.  620 ;  Boyd  v.  Lee, 
36  S.  C.  19,  15  S.  E.  332.  In  New  Jersey,  counsel  fees,  as  such,  cannot  be 
recovered  in  the  absence  of  an  express  agreement.  Van  Atta  v.  McKinney's 
Ex'rs,  16  N.  J.  Law,  235 ;  Blake  v.  City  of  Elizabeth,  2  N.  J.  Law  J.  328.  Fed. 
Cas.  No.  1,495 ;  Hopper  v.  Ludlum,  41  N.  J.  Law,  182.  It  Is  otherwise  where 
there  is  an  express  agreement  to  pay  for  them.  Zabriskie  v.  Woodruff,  48  N. 
J.  Law,  610,  7  Atl.  336.  See  "Attorney  and  Client,"  Dec.  Dig.  (Key-No.)  §§ 
158,  Jo9;  Cent.  Dig.  §§  S58,  S61;  "Physioians  and  Surgeons,"  Dec.  Dig.  (Key- 
No.)  S  2.',;  Cent.  Dig.  §§  53-62. 

»3  See  post,  p.  0,25 


186  CAPACITY   OF   PARTIES  (Ch.  6 

statute,  females  attain  their  majority  at  eighteen,  either  for  all 
purposes  or  for  particular  purposes  specified  in  the  statute.  Since 
the  common  law,  as  a  rule,  does  not  regard  fractions  of  a  day,  an 
infant  becomes  of  age  on  the  beginning  of  the  day  before  his  or 
her  twenty-first  or  eighteenth  birthday,  as  the  case  may  be.^* 

As  we  shall  see,  the  contracts  of  an  infant,  as  a  rule,  are  not 
void,  but  simply  voidable  at  his  option.  The  rule  is  intended  for 
the  infant's  benefit;  and  it  may  therefore  be  said  that  infancy  in 
effect  confers  a  privilege,  rather  than  imposes  a  disability. 

Emancipation  of  an  infant  by  his  parent  gives  him  the  right  to 
his  earnings,  and  releases  him  from  his  parent's  control,  but  it 
does  not  remove  his  disability,  and  clothe  him  with  the  power  to 
contract.^"*  So  statutes  removing  the  common-law  disabilities  of 
married  women  do  not  operate  to  remove  the  disabilities  of  in- 
fancy from  an  infant  married  woman. ^® 

The  Old  Doctrine  as  to  the  Effect  of  an  Infant's  Contract 

There  is  much  confusion  and  conflict  in  the  authorities  as  to  the 
effect  of  the  contracts  of  infants.  In  an  early  English  case  the  doc- 
trine was  stated  to  be  that  (1)  where  the  court  could  pronounce 
the  contract  for  the  benefit  of  the  infant,  as  for  necessaries,  it  was 
good;  (2)  that  where  the  court  could  pronounce  it  to  be  to  his 
prejudice  it  was  void;  and  (3)  that  in  those  cases  where  the  bene- 
fit or  prejudice  were  uncertain  the  contract  was  voidable  only.^'' 
And  the  same  doctrine  has  been  laid  down  by  some  of  the  Ameri- 
can courts  and  text  writers.^* 

This  cannot,  however,  be  accepted  as  a  correct  statement  of  the 
law  to-day.     In  the  first  place,  many  contracts  are  binding  on  an 

84  Mete.  Cont.  (Heard's  Ed.)  43 ;  Herbert  v.  Turball,  1  Keble,  589,  Swell's 
Cas.  1;  Bardwell  v.  Purrington,  107  Mass.  419;  State  v.  Clarke,  3  Har.  (Del.) 
557 ;  Hamlin  v.  Stevenson,  4  Dana  (Ky.)  597 ;  Wells  v.  Wells,  6  Ind.  447 ; 
Linhart  v.  State,  33  Tex.  Cr.  R,  504,  27  S.  W.  260.  See  "Time,"  Dec.  Dig. 
(Key-'No.)  §  11;  Cent.  Dig.  §  53. 

35  Mason  v.  Wright,  13  Mete.  (Mass.)  306;  Tyler  v.  Fleming,  68  Mich.  185, 
35  N.  W.  902,  13  Am.  St.  Eep.  336;  Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl. 
345;  Wickham  v.  Torley,  136  Ga.  594,  71  S.  E.  881,  36  L.  R.  A.  (N.  S.)  57 
[cit.  Clark  on  Contracts  (2d  Ed.)  150].  See  ''Infants,"  Dec.  Dig.  (Key-No.)  §§ 
9,  46;  Cent.  Dig.  §§  10,  98-110. 

88  Shipley  v.  Smith,  162  Ind.  526,  70  N.  K  803.  See  "Infants,"  Dec.  Dig. 
(Key-No.)  §  10;  Cent.  Dig.  §  11. 

37  Keane  v.  Boycott,  2  H.  Bl.  511.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  47; 
Cent.  Dig.  §§  99-110. 

38  Vent  V.  Osgood,  19  Pick.  (Mass.)  572 ;  Tucker  ▼.  Moreland,  10  Pet.  65, 
9  L.  Ed.  345 ;  Owen  v.  Long,  112  Mass.  403 ;  Dunton  v.  Brown,  31  Mich.  182 ; 
Green  v.  Wilding,  59  Iowa,  679,  13  N.  W.  761,  44  Am.  Rep.  696;  Robinson  v. 
Weeks,  56  Me.  102.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  47;  Cent.  Dig.  §§ 
99-110. 


§§   91-94)  INFANTS  187 

infant  without  regard  to  whether  they  are  for  his  benefit  or  not. 
In  the  second  place,  the  great  weight  of  authority  is  against  mak- 
ing any  distinction  between  contracts  of  an  infant  as  being  void 
or  voidable,  and  in  favor  of  holding  all  contracts  other  than  valid 
ones,  with  a  v-ery  few  exceptions,  simply  voidable  by  the  infant  at 
his  option.'*  The  object  of  the  law  is  merely  to  protect  the  infant, 
and  this  object  is  amply  secured  by  not  allowing  the  contract  to  be 
enforced  against  him  during  his  infancy,  and  allowing  him  to  re- 
pudiate it  on  attaining  his  majority.  Moreover,  such  a  distinction 
must  necessarily  be  arbitrary  and  doubtful,  for  it  must  always  be 
difficult,  if  not  impossible,  to  say  whether  a  particular  contract  may 
not  possibly  be  beneficial.  It  is  better  to  allow  the  infant  to  decide 
this  question  for  himself  when  he  becomes  of  age.*° 

Valid  Contracts — Quasi  Contracts 

Quasi  contracts,  or  so  called  contracts  created  by  law  because  of 
a  legal  duty  oa  the  part  of  the  person  bound,  are  as  binding  on  an 
infant  as  on  an  adult. ^^  The  common  law  creates,  as  an  incident 
to  marriage,  a  duty  on  the  part  of  the  husband  to  pay  the  ante- 
nuptial debts  of  the  wife,  and  this  liability  is  imposed  on  infant  as 
well  as  adult  husbands.*^  The  liability  of  an  infant  for  necessaries 
furnished  him  is  quasi  contractual.** 

Same — Contracts  Authorized  by  Law 

The  rule  that'  contracts  of  infants  are  voidable  does  not  apply  to 
contracts  entered  into  by  them  under  authority  or  direction  of  a 

39  Henry  v.  Root,  33  N.  Y.  526;  Fonda  v.  Van  Home,  15  Wend.  (N.  T.) 
631,  30  Am.  Dec.  77;  Holmes  v.  Rice,  45  Mich.  142,  7  N.  W.  772;  Bool  v.  Mix, 
17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285 ;  LEMMON  v.  BEEMAN,  45  Ohio  St. 
505,  15  N.  E.  476,  Throckmorton  Cas.  Contracts,  140;  Kendrick  v.  Neisz,  17 
Colo.  506,  30  Pac.  245 ;  Owen  v.  Long,  112  Mass.  403 ;  Fetrow  v.  Wiseman.  40 
Ind.  148;  Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209; 
Hunt  V.  Peake,  5  Cow.  (N.  Y.)  475,  15  Am.  Dec.  475;  Illinois  Land  &  Loan 
Co.  V.  Bonner,  75  111.  315;  COLE  v.  PENNOYER,  14  111.  158,  Throckmorton 
Cas.  Contracts,  131;  Patchin  v.  Cromach,  13  Vt.  330;  Bozeman  v.  Browning, 
31  Ark.  364 ;  Weaver  v.  Jones,  24  Ala.  420 ;  Ridgeley  v.  Crandall,  4  Md.  435 ; 
McDonald  v.  Sargent,  171  Mass.  492,  51  N.  E.  17 ;  Union  Cent.  Life  Ins.  Co.  v. 
Hilliard,  63  Ohio  St.  478,  59  N.  E.  230,  53  L.  R.  A.  462,  81  Am.  SL  Rep.  644; 
Englebert  v.  Troxell,  40  Neb.  195,  58  N.  W.  852,  26  L.  R.  A.  177,  42  Am. 
St.  Rep.  655.    See  "Infants,"  Dec.  Dig.  {Key-No.)  §  47;   Cent.  Dig.  §§  99-110. 

*o  Pol.  Cont  52 ;  1  Pars.  ConL  244. 

41  Bish.  Cont.  §  906. 

42  Roach  V.  Quick,  9  Wend.  (N.  Y.)  238;  Cole  v.  Seeley,  25  Vt.  220,  60  Am. 
Dec.  258;  Butler  v.  Breck,  7  Mete.  (Mass.)  164,  39  Am.  Dec.  768;  Mitchinson 
V.  Ilewson,  7  Term  R.  348;  Nicholson  v.  Wilborn,  13  Ga.  467;  Anderson  v. 
Smith,  33  Md.  465.  See  "Infanta,"  Dec.  Dig.  (Key-No.)  §§  10,  50;  Cent.  Dig. 
§§  11,  lU-127. 

48  Post,  p.  199. 


188  CAPACITY   OF   PARTIES  (Ch.  6 

Statute  or  of  the  common  law.  For  instance,  a  voluntary  assign- 
ment of  his  property  by  an  infant  debtor  imprisoned  for  debt,  made 
under  a  statute  allowing  "every  person"  to  make  such  an  assign- 
ment, has  been  held  valid  and  binding  on  him,  notwithstanding  his 
infancy.**  So,  also,  where  an  infant  executed  a  bond  for  the  sup- 
port of  his  bastard  child,  in  pursuance  of  a  statute,  it  was  held  that 
the  statute  applied  to  infants,  and  that  the  bond  was  valid  ;*^  and 
a  contract  of  enlistment  in  the  army  by  an  infant  has  been  held 
valid.*" 

It  should  be  mentioned  that  in  some  jurisdictions  the  court  is 
authorized  by  statute  to  remove  the  disabilities  of  infants  in  par- 
ticular cases.**  And  in  some  states  it  is  provided  by  statute  that 
if  an  infant,  by  permission  of  his  parent  or  guardian,  or  by  per- 
mission of  law,  practices  any  profession  or  trade,  or  engages  in  any 
business  as  an  adult,  he  shall  be  bound  by  all  contracts  connected 
with  such  trade,  profession,  or  business.*'  So,  in. at  least  one  state, 
an  infant  of  a  certain  age  is  authorized  by  statute  to  make  a  valid 
contract  of  life  insurance.*' 

Same — Contract  in  Performance  of  Legal  Obligation 

Nor  does  the  rule  apply  where,  by  his  contract,  an  infant  has 
only  done  that  which  he  was  bound  by  law  to  do  and  could  have 
been  compelled  to  do.     In  such  a  case  the  contract  is  valid,  and  he 

4*  People  V.  Mullin,  25  Wend.  (N.  Y.)  698.  See  "Infants,"  Dec.  Dig.  {Key- 
No.)  §  47;  Cent.  Dig.  §§  99-110. 

*6  People  V.  Moores,  4  Denio  (N.  T.)  518,  47  Am.  Dec.  272 ;  and  see  McCall 
V.  Parker,  13  Mete.  (Mass.)  372,  46  Am.  Dec.  735 ;  Bordentown  Tp.  v.  Wallace, 
50  N.  J.  Law,  13,  11  Atl.  267 ;  Gavin  v.  Burton,  8  Ind.  69 ;  Stow ers  v.  Hollis, 
83  Ky.  544.  An  infant's  recognizance  for  appearance  at  court  is  binding. 
State  V.  Weatherwax,  12  Kan.  463;  Dial  v.  Wood,  9  Baxt  (Tenn.)  296.  See 
"Infants,"  Dec.  Dig.  (Key-No.)  §  ^7;  Cent.  Dig.  §§  99-110. 

* 8  United  States  v.  Bainbridge,  1  Mason,  71,  Fed,  Cas.  No.  14,497;  Common- 
wealth V.  Murray,  4  Bin.  (Pa.)  487,  5  Am.  Dec.  412;  United  States  v.  Blakeney, 
3  Grat.  (Va.)  405;  In  re  Higgins,  16  Wis.  351;  In  re  Hearn  (D.  C.)  32  Fed.  141. 
At  common  law  an  enlistment  was  not  voidable  by  the  infant  or  his  parent. 
Morrissey  v.  Perry,  137  U.  S.  157,  11  Sup.  Ct.  57,  34  L.  Ed.  644.  See  "Army 
and  Navy,"  Dec.  Dig.  (Key-No.)  §  19;  Cent.  Dig.  §§  45-50. 

47  See  Doles  v.  Hilton,  48  Ark.  305,  3  S.  W.  193;  Brown  r.  Wheelock,  75 
Tex.  385,  12  S.  W.  Ill,  841;  McKamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312; 
Emancipation  of  Pochelu,  41  La.  Ann.  331,  6  South.  541 ;  Succession  of  Gaines, 
42  La.  Ann.  699,  7  South.  788.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  11; 
Cent.  Dig.  §  12. 

*8  Wickham  v.  Torley,  136  Ga.  594,  71  S.  E.  SSI,  36  L.  R.  A.  (N.  S.)  57. 
See  "Infants,"  Dec.  Dig.  (Key-No.)  §  46;  Cent.  Dig.  §§  98-110. 

4»  Hamm  v.  Prudential  Ins.  Co.  of  America,  137  App.  Div.  504,  122  N.  Y. 
Supp.  35  (age  15).  See  "Infants,"  Dec.  Dig.  {Key-No.)  §  46;  Cent.  Dig.  g§ 
P8-110. 


§§    91-94)  INFANTS  181> 

cannot  avoid  it.'**  Under  this  rule,  a  conveyance  of  land  by  an  in- 
fant, which  he  could  have  been  compelled  in  equity  to  make,  is 
binding  on  him.  Where,  for  instance,  a  father  purchased  land,  and 
took  the  title  in  the  name  of  his  son,  and  the  son  afterwards  during- 
his  minority  conveyed  it  to  a  purchaser  from  his  father,  the  con- 
veyance was  held  to  be  binding  on  the  ground  that  he  merely  part- 
ed with  the  naked  title,  and  only  did  that  which  a  court  of  equity 
would  have  compelled  him  to  do.®^  In  the  leading  case  on  this 
point  an  infant  mortgagee  had,  on  payment  of  the  mortgage  debt  to 
the  persons  entitled  to  receive  it,  made  a  reconveyance  of  the  land, 
and  the  court  held  that,  as  this  was  an  act  which  by  law  he  could 
have  been  compelled  to  perform,  his  voluntary  performance  of  it 
was  binding,  notwithstanding  his  infancy."'^ 

It  is  said  in  a  New  York  case:  "When  an  infant  is  under  a  legal 
obligation  to  do  an  act,  he  may  bind  himself  by  a  fair  and  reason- 
able contract  made  for  the  purpose  of  discharging  the  obligation. 
If  this  be  not  a  general  rule,  it  is  at  least  one  of  pretty  wide  appli- 
cation." "^ 

Same — Executed  Contract 

In  some  jurisdictions  it  is  held  that,  if  the  contract  is  so  far  exe- 
cuted that  the  infant  has  received  the  consideration,  he  cannot  re- 
pudiate the  contract,  and  recover  what  he  has  paid,  or  for  what  he 
has  done,  unless  he  can  and  does  place  the  other  party  in  statu  quo. 
This  doctrine,  as  we  shall  see,  is  not  generally  accepted  in  cases 
where  the  consideration  cannot  be  returned.^* 


80  Co.  Litt.  172a;  2  Kent,  Comm.  242;  Tucker  r.  Moreland,  10  Pet.  58,  9  L. 
Ed.  345;  Prouty  v.  Edgar,  6  Iowa,  353;  Jones  v.  Brewer,  1  Pick.  (Mass.)  314; 
Baker  v.  Lovett,  6  Ma.s.s.  78,  4  Am.  Dec.  88 ;  Trader  v.  Jars'is,  23  W.  Va.  100 : 
Nordholt  v.  Nordholt,  87  Cal.  552,  26  Pac.  599,  22  Am.  St.  Rep.  268;  Starr 
V.  Wright,  20  Ohio  St  97.  A  voluntary  equal  partition  by  an  infant,  since  he 
could  be  compelled  to  make  it,  is  valid.  Vavington  v.  Clarke,  2  Pen.  &  W. 
(Pa.)  115,  21  Am.  Dec.  432;  Cocks  v.  Simmons,  57  Miss.  183.  So,  also,  a  con- 
tract by  a  minor  with  the  mother  of  his  bastard  child  to  support  it  is  binding. 
Stowers  v.  Hollis,  83  Ky.  544 ;  Gavin  v.  Burton,  8  Ind.  69.  And  see  note  45, 
supra.  So  a  note  given  by  an  infant  in  settlement  of  his  liability  for  a  tort 
Ray  V.  Tubbs,  50  Vt  688,  28  Am.  Rep.  519.  See  "Infants,"  Dec.  Dig.  (Key-No.) 
i  ^6;    Cent.  Dig.  §§  98,  99. 

51  Elliott  V.  Horn,  10  Ala.  348,  44  Am.  Dec.  488.  See  "Infants,"  Dec.  Dig. 
(Ecy-yo.)  §  J,6;   Cent.  Dig.  §§  9S-110. 

5  2  Zouch  V.  Parsons,  3  Burrows,  1801.  See  "Infants,"  Dec.  Dig.  (Key-No.)  § 
46;    Cent.  Dig.  §§  98-110. 

53  People  V.  Moores.  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272,  See  "Infants," 
Dec.  Dig.  (Key-No.)  §  JfG;    Cent.  Dig.  §§  98,  99. 

»*  Post,  p.  215. 


190  CAPACITY   OF   PARTIES  (Ch.  6 

Fold  Contracts 

As  already  stated,  some  courts  still  hold  that  contracts  mani- 
festly and  without  doubt  prejudicial  to  the  infant  are  void." 
Among  the  contracts  which  have  been  held  void  upon  this  ground 
may  be  mentioned  conveyances  of  land  without  consideration/* 
contracts  of  suretyship, °''  and  obligations  with  a  penalty."**  This, 
however,  is  no  longer  the  prevailing  doctrine. 

The  rule  is  generally  recognized  that  contracts  entered  into  on 
behalf  of  an  infant  by  an  agent  acting  under  a  power  of  attorney 
from  him  are  void,  at  least  where  authority  to  make  the  particular 
contract  could  be  given  by  an  adult  only  by  power  of  attorney.^® 

Voidable  Contracts 

Under  the  prevailing  doctrine  that  the  contracts  of  an  infant  are 
voidable,  and  not  void,  contrary  to  the  decisions  mentioned  in  the 
preceding  paragraph,  some  courts  have  held  contracts  of  surety- 
ship,®" and  bonds  with  a  penalty,®^  merely  voidable.  Probably  all 
courts  regard  as  merely  voidable  purchases  or  sales  and  conveyanc- 
es of  real  or  personal  property,  including  mortgages,  for  a  consider- 
ation,*^ partnership  agreements,*^  agreements  to  render  services,^* 

BB  Ante,  p.  180.  For  a  collection  of  cases  on  the  qnestion  when  a  contract  by 
an  infant  is  to  be  held  void  and  when  merely  voidable,  see  Ewell,  Lead.  Cas. 
30-34,  44-46,  52-55.  See  'Hrifants,"  Dec.  Dig.  (Key-No.)  §  47;  Cent.  Dig.  §§ 
99-110. 

6  8  Robinson  v.  Coulter,  90  Tenn.  705,  18  S.  W.  250,  25  Am.  St  Rep.  70S.  See 
"Infants,"  Dec.  Dig.  (Key-No.)  §  47;   Cent.  Dig.  §§  99-110. 

B7  Maples  V.  Wightman,  4  Conn.  376,  10  Am.  Dec.  149.  See  "Infants,"  Dec. 
Dig.  (Key-No.)  §  47;  Cent.  Dig.  §§  99-110. 

B8  Fisher  v.  Mowbray,  8  East,  330;  Baylis  v.  Dinely,  3  Maule  &  S.  477.  See 
"Infants,"  Dec.  Dig.  (Key-No.)  §  47;    Cent.  Dig.  §§  99-110. 

5  9  Trueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756.  And  see  post,  p.  191. 
See  "Infants,"  Dec.  Dig.  (Key-No.)  %  5;   Cent.  Dig.  §§  5,  7. 

«o  Owen  V.  Long,  112  Mass.  403;  Fetrow  v.  Wiseman,  40  Ind.  148;  Wil- 
liams V,  Harrison,  11  S.  C.  412 ;  Hamer  v.  Dipple,  31  Ohio  St  72,  27  Am.  Rep. 
496.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  4?;   Cent.  Dig.  §§  99-110. 

61  Mustard  v.  Wohlford's  Heirs,  15  Grat  (Va.)  329,  76  Am.  Dec.  209;  Weav- 
er V.  Jones,  24  Ala.  420;  Reed  v.  Lane,  61  Vt  481,  17  Atl.  796.  See  "Infants," 
Dec.  Dig.  (Key -No.)  §  47;   Cent.  Dig.  §§  99-110. 

62  COLE  v.  PENNOYER,  14  111.  158,  Throckmorton  Cas.  Contracts,  131 ;  Ir- 
vine V.  Irvine,  9  Wall.  617,  19  L.  Ed.  800;  Zouch  v.  Parsons,  3  Burrows,  1794; 
Bigelow  V.  Kinney,  3  Vt  353,  21  Am.  Dec.  589;  Dixon  v.  Merritt,  21  Minn.  196; 
Hastings  v.  Dollarhide,  24  Cal.  195;  Logan  v.  Gardner,  136  Pa.  588,  20  ^tl: 
625,  20  Am.  St  Rep.  939 ;  French  v.  McAudrew,  61  INIiss.  187 ;  Henry  v.  Root, 
33  N.  Y.  526 ;  Callis  v.  Day,  38  Wis.  643 ;  Manning  v.  Johnson,  26  Ala.  446,  62 
Am.  Dec.  732.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  47;    Cent.  Dig.  §§  99-110. 

63  Dunton  v.  Brown,  31  Mich.  182.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  54; 
Cent.  Dig.  §§  130-134. 

«*  Vent   V.  Osgood,  19  Pick.  (Mass.)  572;    Clark  v.  Goddard,  39  Ala.  164,  84 


§§    91-94)  INFANTS  191 

promissory^  notes/^_indorsement  of  a  promissory  note,"  and  the 
like." 

Appointment  of  Agent 

It  is  very  generally  laid  down,  even  by  courts  which  do  not  rec- 
ogTiize  the  old  doctrine  as  to  void  and  voidable  contracts,  that  an 
infant  cannot  appoint  an  agent  or  attorney,  and  that  such  appoint- 
ment, and  consequently  all  acts  and  contracts  of  the  agent  there- 
under, are  void,®*  subject  to  an  exception  where  the  appointment 
is  to  do  an  act  to  the  infant's  advantage,  as  to  receive  seisin.®"     It 

Am.  Dea  777;  Harney  v.  Owen,  4  Blackf.  (Ind.)  337,  30  Am.  Dec.  602.  And 
see  post,  p.  219.    See  "Infants,"  Dec.  Dig.  (Key-yo.)  §  J,7;   Cent.  Dig.  §§  99-110. 

6  5  Goodsell  V.  Myers,  3  Wend.  (N.  Y.)  479;  Fetrow  v.  Wiseman,  40  Ind.  148; 
Wamsley  v.  Lindenberger,  2  Rand.  (Va.)  47S;  Earle  v.  Reed,  10  Mete.  (Mass.) 
389;  Minock  v.  Shortridge.  21  Mich.  314.  See  ''Infants,"  Dec.  Dig.  (Key-No.)  § 
47;   Cent.  Dig.  §§  99-110. 

6  8  Nightingale  v.  Withiugton,  15  Mass.  272,  8  Am.  Dec.  101;  Willis  v.  Twam- 
bly,  13  Mass.  204;  Frazier  v.  Massey,  14  Ind.  382;  Briggs  v.  McCabe,  27 
Ind.  327,  89  Am.  Dec  503.  ^ee  "Infants,"  Dec.  Dig.  (Key-No.)  §  47;  Cent. 
Dig.  §§  99-110. 

6  7  Lease  by  or  to  infant.  Zouch  v.  Parsons,  3  Burrows,  1794;  Griffith  v. 
Schwenderman,  27  Mo.  412.  Submission  to  arbitration.  Jones  v.  Bank,  8  N. 
Y.  228;  Barnaby  v.  Barnaby,  1  Pick.  (Mass.)  221.  Settlement  of  disputed 
boundary.  Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)  114,  13  Am.  Dec.  6G0.  Com- 
promise of  action  or  claim.  Ware  v.  Cartledge,  24  Ala.  622,  60  Am.  Dec.  489 ; 
Baker  v.  Lpyett,  6  Mass.  78,  4  Am.  Dec.  88.  An  infant's  promise  to  marry  is 
voidable  at  his  or  her  option.  Holt  v.  Ward  Clarencieux,  2  Strange,  937, 
Ewell,  Lead.  Cas.  50;  Hunt  v.  Peake,  5  Cow.  (N.  Y.)  475,  15  Am.  Dec.  475; 
Rush  V.  Wick,  31  Ohio  St  521,  27  Am.  Rep.  523;  Cannon  v.  Alsbury,  1  A. 
K.  Marsh.  (Ky.)  76,  10  Am.  Dec.  709 ;  Warwick  v.  Cooper,  5  Sneed  (Tenn.)  659. 
And  it  has  been  held  that  a  statute  providing  that  persons  under  the  age  of 
21  years  "may  contract  and  be  joined  in  marriage"  does  not  remove  an  in- 
fant's disability  in  this  respect,  so  as  to  render  him  liable  for  breach  of  prom- 
ise to  marry.  McConkey  v.  Barnes,  42  111.  App.  511.  See  "Infants,"  Dec.  Dig. 
(Key-No.)  §  47;   Cent.  Dig.  §§  99-110. 

88  Saunderson  v.  Marr,  1  H.  Bl.  75;  Doe  v.  Roberts,  16  M.  &  W.  778;  Fonda 
v.  Van  Home,  15  Wend.  (N.  Y.)  631,  SO  Am.  Dec.  77 ;  Bool  v.  Mbc,  17  Wend. 
(N.  Y.)  120,  31  Am.  Dec.  285 ;  Bennett  v.  Davis,  6  Cow.  (N.  Y.)  393 ;  Knox  v. 
Flack,  22  Pa.  337;  Waples  v.  Hastings,  3  Har.  (Del.)  403;  Waiuwright  v. 
Wilkinson,  62  Md.  146 ;  Philpot  v.  Bingham,  55  Ala.  439 ;  Pyle  v.  Cravens,  4 
Litt.  (Ky.)  17 ;  Lawrence's  Lessee  v.  McArter,  10  Ohio.  37 ;  Armitage  v.  Widoe, 
36  Mich.  124;  Trueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Holden 
V.  Curry,  85  Wis.  504,  55  N.  W.  9G5 ;  Wambole  v.  Foote,  2  Dak.  1,  2  N.  W.  239. 
See,  also,  Bartholomew  v.  Dighton,  Cro.  Eliz.  424 ;  Whittingham's  Case,  8 
Co.  42b ;  Dexter  v.  Hall,  15  Wall.  9,  25,  21  L.  Ed.  73 ;  Tucker  v.  Moreland,  10 
Pet.  58,  08,  9  L.  Ed.  345;  Flexner  v.  Dickerson,  72  Ala.  318;  COLE  v.  PEN- 
NO  YER,  14  111.  158,  Throckmorton  Cas.  Contracts,  131 ;  Fetrow  v.  Wiseman, 
40  Ind.  148,  155 ;  Burns  v.  Smith,  29  Ind.  App.  181,  04  N.  E.  94,  94  Am.  St. 
Rep.  268.     See  "Infants,"  Dec.  Dig.  (Key-No.)  §  5;    Cent.  Dig.  §§  5,  7. 

69  Zouch  V.  Parson.s,  3  Burr.  1794,  1805,  1808.  See  Duvall  v.  Graves,  7 
Bush  (Ky.)  461.     Bee  "Infants,"  Dec.  Dig.  (Key-No.)  S  5;   Cent.  Dig.  §§  5,  7. 


192  CAPACITY   OF   PARTIES  (Ch.  6 

is  noticeable,  however,  that  nearly  all  the  cases  which  lay  down 
this  rule  are  cases  involving-  warrants  of  attorney  to  confess  judg- 
ment and  powers  of  attorney  to  execute  a  deed;  and  while  ag  to 
these  the  rule  appears  to  be  firmly  established,  the  tendency  of  the 
later  decisions  is  to  confine  the  rule  to  such  cases,  and  in  other 
cases  to  hold  an  infant's  appointment  of  an  agent  and  the  acts  and 
contracts  made  under  it  as  voidable,  and  not  void.^" 

SAME— LIABILITY  FOR  NECESSARIES 

95.  An  infant  is  liable  for  the  reasonable  value  of  necessaries  fur- 

nished him. 

96.  What  are  necessaries  will  depend  upon  the  particular  circum- 

stances. The  term  includes  whatever  is  reasonably  needed 
for  his  subsistence,  health,  comfort,  or  education,  taking  in- 
to consideration  his  age,  state,  and  condition  in  life.  The 
following  rules  may  be  stated : 

(a)  The  things  furnished  must  concern  his  person,  and  not  his 

estate. 

(b)  He  is  not  liable  for  money  borrowed,  and  expended  for  nec- 

essaries, unless  the  lender,  sees  that  it  is  so  expended. 

(c)  An  infant  is  liable  for  necessaries  furnished  his  wife,  and,  in 

some  jurisdictions,  his  children.  . 

(d)  Persons  supplying  an  infant  act  at  their  peril,  and  cannot  re- 

cover if  the  actual  circumstances  were  such  that  the  things 
furnished  were  not  necessaries. 

97.  The  liability  of  an  infant  for  necessaries  is  not  contractual,  but 

quasi  contractual,  and  his  express  contract  for  necessaries 
is  voidable ;  but  in  some  jurisdictions  a  recovery  to  the  ex- 
tent of  their  reasonable  value  is  allowed  in  an  action  upon 
the  express  contract. 

Among  the  contracts  which  are  manifestly  for  the  benefit  of  an 
infant,  and  hence  binding,  it  is  frequently  said  are  his  contracts  for 
necessaries.''^     The  obligation  of  an  infant  to  pay  for  necessaries 

7*  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229;  Welch  v.  Welch,  103 
Mass.  562;  Moley  v.  Brine,  120  Mass.  324;  Fairbanks  v.  Snow,  145  Mass.  153. 
13  N.  E.  59G,  1  Am.  St.  Rep.  446,  per  Holmes,  J. ;  Hardy  v.  Waters,  3S  Me. 
450;  Towle  v.  Dresser,  73  Me.  252;  Patterson  v.  Lippincolt,  47' N.  J.  Law,  457, 
1  Atl.  506,  54  Am.  Rep.  178 ;  Hastings  v.  Dollarhide,  24  Cal.  195 ;  Coursolle  v. 
Weyerhauser,  69  Minn.  328,  72  N.  W.  697.  See  Tiffany,  Ag.  94.  See  ''Infants," 
Dec.  Dig.  (Key-No.)  §  57;    Cent.  Dig.  §  137. 

Ti  McConnell  v.  McConnell,  75  N.  H.  385,  74  Atl.  875.  And  see  post,  p.  199. 
See  "Infants,"  Dec.  Dig.  (Key-No.)  §  50;   Cent.  Dig.  §§  114-127. 


§§    95-97)  LIABILITY    FOE    NECESSARIES  193 

furnished  to  him  is,  however,  quasi  contractual,  rather  than  con- 
tractual. This  is  shown  by  the  rule  that,  while  he  is  liable  for  nec- 
essaries actually  furnished,  he  is  not  liable  on  an  executory  con- 
tract for  necessaries,^^  and  by  the  further  fact  that  he  is  liable  to 
pay,  not  the  price,  but  the  reasonable  value,  of  the  necessaries.^* 

What  are  Necessaries — In  General 

Lord  Coke  has  said  that  an  infant's  necessaries  are  "his  necessary 
meat,  drinke,  apparel,  necessary  physicke,  and  such  other  necessa- 
ries, and  likewise  for  his  good  teaching-  or  instruction,  whereby  he 
may  profit  himself  afterwards."  ''*  Under  this  rule  necessaries  will 
include  whatever  is  reasonably  needed  for  the  infant's  subsistence, 
such  as  food  and  lodging;  ^^  for  his  health,  such  as  medicine,  and 
services  of  a  physician  or  nurse  in  case  of  sickness;  ^*  for  his  com- 
fort,''^ and  for  his  education,''*  The  term  is  not  limited  to  what 
is  necessary  to  the  actual  support  of  life,  but  extends  "to  articles 
fit  to  maintain  the  particular  person  in  the  state,  station,  and  degree 

7  2  Wallin  V.  Highland  Park  Co.,  127  Iowa,  131,  102  N.  W.  839,  4  Ann.  Cas. 
421 ;  Jones  v.  Valentines'  School  (ft  Telegraphy,  122  Wis.  318,  99  N.  W.  1043. 
See  ''Infants,"  Dec.  Dig.  {Key-No.)  §  50;    Cent.  Dig.  §§  114-127. 

7  3  Post,  p.  &44. 

74  Co.  Litt.  172a.  For  a  good  discussion  of  the  law  in  regard  to  necessaries, 
see  Ryder  v.  Wombwell,  L.  R.  3  Exch.  95.  See  "Infants,"  Dec.  Dig.  (Key-No.^ 
§  50;   Cent.  Dig.  §§  11J,-127. 

7  5  Barnes  v.  Barnes,  50  Conn.  572;  Rivers  v.  Gregg,  5  Rich.  Eq.  (S.  C.)  274. 
Dinners  supplied  to  a  student  at  private  rooms  at  a  university,  prima  facie 
not  necessaries.  Brooker  v.  Scott,  11  Mees.  &  W.  67;  Wharton  v.  McKenzie, 
5  Q.  B.  606.  Hotel  bill.  Watson  v.  Cross,  2  Duv.  (Ky )  147.  Dwelling  house 
not  a  necessary.  Allen  v.  Lardner,  78  Hun,  603,  29  N.  Y.  Supp.  213,  See 
"Infants,"  Dec.  Dig.  (Key-No.)  §  50;    Cent.  Dig.  §§  114-127. 

7  8  Gibbs  V,  Poplar  Bluff  Light  &  Power  Co.,  142  Mo.  App.  19,  125  S.  W. 
840;  Glover  &  Co.  v.  Ott's  Adm'r,  1  McCord  (S.  C.)  572;  Werner's  Appeal. 
91  Pa.  222.  And  see  Hoyt  v.  Casey,  114  Mass.  397,  19  Am.  Rep.  371 ;  Wail- 
ing V.  Toll,  9  Johns.  (N.  Y.)  141.  A  horse  may  be  necessary  for  health,  Hart 
V.  Prater,  1  Jur.  623  ;  Harrison  v.  Fane,  1  Man.  &  G.  550 ;  but  not  if  for 
pleasure,  note  85,  infra.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  50  •  Cent 
Dig.  §§  114-127. 

7  7  Dentist's  services.  Strong  v.  Foote,  42  Conn.  203.  An  infant  is  liable 
for  reasonable  attorney's  fees  for  defending  him  in  a  criminal  prosecution. 
Askey  v.  Williams,  74  Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176 ;  Barker  v.  Hib^ 
bard,  54  N,  H,  539,  20  Am.  Rep.  160.  And  see  Munson  v.  Washbaud,  31  Conn. 
803,  83  Am  Dec.  151 ;  Crafts  v.  Carr,  24  R.  I  397,  53  Atl.  275,  60  L.  R.  A. 
128,  96  Am,  SL  Rep.  721;  Wedding  outfit.  Jordan  v.  Coffleld,  70  N.  C.  110; 
Sams  V.  Stockton,  14  B.  Mon.  (Ky.)  232.  Clothing.  Mackerell  v.  Batchelor, 
Cro.  Eliz.  583;  Glover  &  Co.  v,  Ott's  Adm'r,  1  McCord  (S.  C.)  572.  But  not 
for  an  unnecessary  supply  of  clothing.  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.) 
80,  40  Am.  Dec.  542;  Burghart  v.  Angerstein,  6  Car.  &  P.  690.  See  "Itv- 
fants,"  Dec.  Dig.  (Key-No.)  i  50;   Cent.  Dig.  §§  114-127. 

7«  See  post,  p.  194- 

Ct.ABK  CoNT.(3i)  Ed.) — 13 


194  CAPACITY   OF   PARTIES  (Ch.  6 

in  life  in  which  he  is,"  so  that  things  may  be  necessary  for  one  per- 
son which  would  not  be  necessary  for  another  in  a  different  station 
in  life.^o 

The  construction  of  the  general  rule  is  well  illustrated  in  its  ap- 
plication to  education.  Thus,  a  common-school  education  is  con- 
ceded to  be  a  necessary  as  essential  to  the  transaction  of  ordinary 
business  and  to  the  intelligent  discharge  of  civil,  political,  and  re- 
ligious duties. *°  While  under  exceptional  circumstances  of  wealth 
or  station  in  society  a  college  education  may  be  a  necessary,  yet 
the  great  majority  of  persons  pass  through  life  without  it,  and  it 
has  been  held  that  under  ordinary  circumstances  it  is  not  a  neces- 
sary.*^ Whether  or  not  a  technical  or  professional  education  is  a 
necessary  depends  upon  the  facts  and  circumstances  of  the  particu- 
lar case.''* 

7  8  Peters  v.  Fleming.  6  Mees.  &  W.  46;  Ewell,  Lead.  Cas.  56;  Ryder  v. 
Wombwell,  L.  R.  4  Exch.  32;  McKANNA  v.  MERRY,  61  111.  177,  Throck- 
morton Cas.  Contracts,  135;  Breed  v.  Judd,  1  Gray  (Mass.)  455;  Squier  v. 
Hydliff,  9  Mich.  274;  Wilhelm  v.  Hardman,  13  Md.  144;  Jordan  v.  Coffield, 
70  N.  C.  110 ;  Nicholson  v.  Spencer,  11  Ga.  610 ;  Mauldin  v.  Southern  Short- 
hand &  Business  University,  126  Ga.  681,  55  S.  E.  922,  8  Ann.  Cas.  130  [quot 
Clarlf  on  Contracts  (2d  Ed.)  156].  Board  of  four  horses  for  six  months,  the 
principal  use  of  which  was  in  the  business  of  an  infant  as  a  hackman,  though 
the  horses  were  occasionally  used  to  carry  his  family  out  to  drive,  was  held 
not  necessary.  Merriam  v.  Cunningham,  11  Cush.  (Mass.)  40.  Livery  for  the 
servant  of  an  infant  officer  in  the  army  was  held  a  necessary.  Hand  v.  Sla- 
ney,  8  Term  R.  578.  And  see  Coates  v.  Wilson,  5  Esp.  152.  But  not  cock- 
ades ordered  for  his  soldiers.  Hand  v.  Slaney,  supra.  "Articles  of  mere 
luxury  are  always  excluded,  though  luxurious  articles  of  utility  are  in  some 
cases  allowed."  Chappie  v.  Cooper,  13  Mees.  &  W.  252.  See  "Infants,"  Dec. 
Dig.  (Eey-No.)  §  50;    Cent.  Dig.  §§  llJt-121. 

8  0  Middlebury  College  v.  Chandler,  16  Vt  686,  42  Am.  Dec.  537.  Board  bill 
contracted  by  an  infant  to  enable  him  to  attend  school  is  a  necessary  ex- 
pense. Kilgore  v.  Rich,  S3  Me.  305,  22  Atl.  176,  12  L.  R.  A.  859,  23  Am.  St. 
Rep.  780.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §§  50,  53;  Cent.  Dig.  §§  II4, 
116. 

81  Middlebury  College  v.  Chandler,  supra;  Pickering  v.  Gunniug,  W.  Joues, 
182.     See  "Infants"  Dec.  Dig.  (Key-No.)  §§  50,  53;    Cent.  Dig.  §§  11^,  116. 

82Bouchell  V.  Clary,  3  Brev.  (S  C.)  194;  Mauldin  v.  Southern  Shorthand 
&  Business  University,  126  Ga.  68i,  55  S.  E.  922,  8  Ann.  Cas.  180  (course  iu 
stenography).  Thus,  under  certain  circumstances,  a  medical  education  has 
been  held  not  to  be  necessary,  Turner  v.  Gaither,  83  N.  C.  357,  35  Am.  Rep. 
574 ;  while  under  other  circumstances,  it  has  been  conceded  that  a  course 
in  pharmacy  is  necessary.  Wallin  v.  Highland  Park  Co.,  127  Iowa,  131,  102 
N.  W.  839,  4  Ann.  Cas.  421.  Whether  preliminary  education  in  arithmetic, 
algebra,  geometry,  and  mechanical  drawing  as  part  of  a  •  correspondence 
course  in  electricity  was  necessary  to  an  infant  who  had  spent  two  years  in 
a  high  school  was  a  question  of  fact  for  the  jury.  International  Text-Book 
Co.  V.  Doran,  SO  Conn.  307,  68  Atl.  255.  See  "Infants,"  Dec.  Dig.  (Key-No.) 
§§  50,  53;   Cent.  Dig.  §  lU. 


§§    95-97)  LIABILITY   FOB   NECESSARIES  195 

While,  therefore,  as  a  general  rule,  the  question  must  depend  on 
the  circumstances  of  each  particular  case,  there  are,  of  course,  some 
things  which  are  obviously  incapable  of  being-  deemed  necessaries. 
A  wild  animal  or  a  steam  roller,  or  a  railroad  engine,  cannot,  under 
any  circumstances,  be  deemed  such.  And  the  same  has  been  held 
of  life  insurance.®' 

Nor  can  things  intended  for  ornament,  and  not  for  use,^*  or 
merely  for  pleasure,®^  be  regarded  as  necessary.  Again,  things  may 
be  of  a  useful  or  necessary  character,  but  the  quality  or  quantity 
supplied  may  take  them  out  of  the  character  of  necessaries.**  Ele- 
mentary text-books  might  be  necessary  to  a  law  student;  but  not 
a  rare  edition,  nor  a  great  number  of  copies  of  a  single  book. 
Things  necessary  to  a  person  in  one  station  of  life  might  not  be 
necessary  to  a  person  in  a  different  station.  Again,  things  not  usu- 
ally necessary  may  become  so  from  the  circumstances  of  the  in- 
fant. Medical  attendance  and  expensive  articles  of  food  may  ordi- 
narily be  dispensed  with,  but  may  become  necessary  in  case  of  ill 
health. 

Things  with  whicli  an  infant  is  already  sufficiently  supplied  are 
not  necessary.®^    An  infant  residing  under  the  care  of  his  father  or 

8  3  Simpson  v.  Prudential  Ins.  Co.  of  America,  184  Mass.  348,  68  N.  E.  673, 
63  L.  R.  A.  741,  100  Am.  St.  Rep.  500,  See  "Infants,"  Dea  Dig.  (Key-No.)  § 
50;    Cent.  Dig.  §§  115-121. 

84  Peters  v,  Fleming,  6  Me<JS.  &  W.  42;  McKANNA  v.  MERRY,  61  III.  179, 
Throckmorton  Cas.  Contracts,  135.  See  "'Infants,"  Dec.  Dig.  {Key-No.)  §§ 
50,  5S;   Cent.  Dig.  §§  11. 'u  116. 

85  McKANNA  V.  MERRY,  61  111.  179,  Throckmorton  Cas.  Contracts,  135 ; 
Glover  v.  Ott's  Adm'r,  1  McCord  (S.  C.)  572;  Beeler  v.  Young,  1  Bibb  (Ky.) 
519.  Horse,  carriage,  or  bicycle  not  ordinarily  a  necessity.  House  v.  Alex- 
ander, 105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189 ;  Miller  v.  Smith,  26  Minn. 
248,  2  N.  W.  942,  37  Am.  Rep.  407;  Pyne  v.  Wood,  145  Mass.  55S,  14  N.  E. 
775;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Howard  v.  Simpkins,  70  Ga.  322; 
Heffington  v.  Jackson,  43  Tex.  Civ.  App.  560,  96  S.  W.  108  (buggy  and.  har- 
ness). A  horse,  however,  may  be  necessary  for  health.  Note  76,  supra. 
Money  furnished  to  enable  an  infant  to  take  a  necessary  trip  may  be  neces- 
sary, but  not  to  take  a  trip  for  pleasure.  Breed  v.  Judd,  1  Gray  (Mass.)  455; 
McKANNA  V.  MERRY,  supra.  Tobacco  is  prima  facie  not  necessary.  Bry- 
ant V.  Richardson,  12  Jur.  (N.  S.)  300.  See  ''Infants,"  Dec.  Dig.  {Key-No.)  §§ 
50,  53;    Cent.  Dig.  §§  ll-'t,  116. 

8  6  Ryder  V.  Wombwell,  L.  R.  3  Exch.  95;  Burghart  v.  Angerstein,  6  Car. 
&  P.  090;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am.  Dec.  542;  Nichol- 
son V.  Spencer,  11  Ga.  610.  See  "Infants,"  Dec.  Dig.  {Key-No.)  §  50;  Cent. 
Dig.  §§  111,-121. 

87  Barnes  v.  Toye,  13  Q.  B.  Div.  410;  Da\'is  v.  Caldwell,  12  Cush.  (Mass.) 
512;  Kline  v.  L'Amoureux,  2  Paige  (N.  Y.)  419,  22  Am.  Dec.  652;  Rivers  v. 
Gregg,  5  Rich.  Eq.  (S.  C.)  274;  McKANNA  v.  MERRY,  61  IlL  ISO,  Throck- 
morton Cas.  Contracts,  135;  Nicholson  v.  Wilborn,  13  Ga.  467;  Bainbridge 
V.  Pickering,  2  W.  Bl.  1325 ;    Burghart  v.  Angerstein,  6  Car.  &  P.  690 ;    Perrin 


196  CAPACITY   OF   PARTIES  (Ch.  6 

guardian,  and  supported  by  him,  is  not  liable  even  for  necessaries; 
and  it  even  seems  that  this  is  so  notwithstanding  the  poverty  of  his 
father.*'  It  has  been  held  that  the  fact  that  an  infant  is  abundantly 
supplied  with  money,  so  that  he  can  purchase  necessaries  for  cash  if 
he  chooses,  is  not  equivalent  to  being  supplied,  and  he  will  never- 
theless be  liable  for  necessaries  bought  on  credit;  but  there  is  au- 
thority to  the  contrary.®" 

Must  Concern  His  Person 

The  things  furnished,  to  come  within  the  term  "necessaries," 
must  concern  the  person  of  the  infant,  and  not  his  estate.  An  in- 
fant, therefore,  is  not  bound  by  contracts  for  things  necessary  to 
carry  on  a  business  into  which  he  enters.""  He  is  not  liable  for  ma- 
terials purchased  and  used  for  the  erection  of  a  house  on  his  land,*^ 
and  it  has  even  been  held  that  he  is  not  liable  for  the  expense  of 
repairing  his  dwelling  house  on  a  contract  made  by  him  therefor, 
although  the  repairs  may  have  been  necessary  to  prevent  immedi- 

V.  Wilson,  10  Mo.  451;  Guthrie  v.  Murphy,  4  Wat^^  (Pa.)  80,  28  Am.  Dea 
681;  note  86,  supra.  See  "Infants,"  Dec.  Dig.  {Key-No.)  §  50;  Cent.  Dig.  U 
ll>t-121. 

88  Hoyt  V.  Casey,  114  Mass.  397,  19  Am.  Rep.  371;  Bainbridge  v.  Picker- 
ing, 2  W.  Bl.  1325;  Ewell,  Lead.  Cas.  55;  Wailing  v.  Toll,  9  Johns.  (N.  Y.) 
141 ;  Gurhrie  v.  Murphy,  4  Watts  (Pa.)  80,  28  Am.  Dec.  681 ;  Decell  v.  Lew- 
enthal,  57  Miss.  331,  34  Am.  Rep.  449;  Kline  v.  L'Amoureux,  2  Paige  (N.  Y.) 
419,  22  Am.  Dec.  652 ;  Perrin  v.  Wilson,  10  Mo.  451 ;  Trainer  v.  Trum- 
bull, 141  Mass.  530,  6  N.  E.  761;  Jones  v.  Colvin,  1  McMul.  (S.  C.)  14; 
Elrod  V.  Myers,  2  Head  (Tenn.)  33 ;  Kraker  v.  Byram,  13  Rich.  Law  (S.  C.) 
163 ;  Freeman  v.  Bridger,  49  N.  C.  4,  67  Am.  Dec.  258 ;  Hull's  Assignees  v, 
Connolly,  3  McCord  (S.  C.)  6,  15  Am.  Dec.  612.  A  complaint,  however,  is  not 
demurrable  for  failure  to  allege  refusal  of  the  parent  or  guardian  to  supply 
the  infant,  or  that  there  was  no  person  who  could  and  would  support  him. 
Goodman  v.  Alexander,  165  N.  T.  289.  59  N.  E.  145,  55  L.  R.  A.  781.  -See  "/n- 
fants,"  Dec.  Dig.  (Key-No.)  §  50;    Cent.  Dig.  §§  114-127. 

8  9Burghart  v.  Hall,  4  Mees.  &  W.  727.  But  see  Rivers  v.  Greggs,  5  Rich. 
Eq.  (S.  C.)  274;  Barnes  v.  Toye,  13  Q.  B.  Dlv.  410.  See  "Infants,"  Dec.  Dig. 
{Key-No.)  §  50;    Cent.  Dig.  §§  lU-127. 

90  House  V.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;  Mason 
V.  Wright,  13  Mete.  (Mass.)  306;  Stem  v.  Meikleham,  56  Hun,  475,  10  N.  Y, 
Supp.  216 ;  Paul  v.  Smith,  41  Mo.  App.  275 ;  Decell  v.  Lewenthal,  57  Miss. 
331,  34  Am.  Rep.  449;  MeiTiam  v.  Cunningham,  11  Cush.  (Mass.)  40;  State 
V.  Howard,  88  N.  C.  650;  W^ood  v.  Losey,  50  Mich.  475,  15  N.  W.  557;  Dilk 
y.  Reishley,  2  Esp.  480;  Wallace  v  Leroy,  57  W.  Va.  263,  50  S.  E.  243,  110 
Am.  St.  Rep.  777  (even  thougn  he  aeri'es  his  living  from  the  business).  See 
"Infants"  Dec.  Dig.   {Key-No.)  §  50;    Cent.  Dig.  §§  llJt-127. 

81  Wornock  v.  Loar  (Ky.)  11  S.  W.  438;  Freeman  v.  Bridger,  49  N.  C.  1,  67 
Am.  Dec.  258 ;  Price  v.  Jennings,  62  led.  111.  Nor  is  his  property  subject  to 
a  mechanic's  lien  therefor.  Bloomer  v.  Nolan,  36  Neb.  51,  53  N.  W.  1039,  38 
Am.  St.  Rep.  690.  See  "Infa/nta,"  Dec.  Dig.  (Key-No.)  g  50;  Cent.  Dig.  §} 
llJf-127. 


§§    95-97)  LIABILITY    FOR   NECESSARIES  197 

ate  and  serious  injury  to  the  house. '^  So  he  is  not  liable  on  a  con- 
tract of  fire  insurance.®^  While  an  infant  is  liable  for  a  reasonable 
attorney's  fee  for  services  rendered  in  connection  with  his  personal 
relief,  protection,  or  liberty,**  yet  on  principle  and  by  the  weight 
of  authority  he  is  not  liable  for  services  rendered  by  an  attorney  in 
connection  with  his  property  or  estate,®" 
Money 

Money,  as  such,  is  not  regarded  as  necessary.  "An  infant,"  it  was 
said  in  a  New  York  case,  "is  not  answerable  for  money  borrowed, 
though  expended  by  him  for  necessaries ;  nor  for  money  borrowed 
to  buy  necessaries,  unless  it  was  actually  so  applied.  And  perhaps 
the  infant  is  not  answerable  in  that  case,  unless  the  lender  either 
lays  out  the  money  himself,  or  sees  it  laid  out,  for  necessaries.  But 
where  this  is  done  the  infant  is  answerable  for  the  money  the  same 
as  he  would  have  been  for  the  necessaries  had  they  been  directly 
furnished  by  the  lender."  *' 

92  Phillips  V.  Lloyd,  18  R.  I.  99,  25  Atl.  909;  Tupper  v.  Cadwell,  12  Mete. 
(Mass.)  559,  46  Am.  Dec.  704;  Wallis  v.  Bardwell,  126  Mass.  306;  West  v. 
Gregg's  Adm'r,  1  Grant  Cas.  (Pa.)  53.  Nor  for  a  loan  of  money  to  pay  off 
incumbrances.  Bicknell  v.  Bicknell,  111  Mass.  2G5 ;  Magee  v.  Welsh,  18  Cal. 
155.     See  ''Infants,"  Dec.  Dig.  {Key-No.)  §  50;    Cent.  Dig.  §§  114-127. 

93  New  Hampshire  Mut.  Fire  Ins.  Co.  v.  Noyes,  32  N.  H.  345.  See  "In- 
fants," Dec.  Dig.  (Key-No.)  §  50;    Cent.  Dig.  §§  114-127. 

9  4  Crafts  V.  Carr,  24  R.  I.  397.  53  Atl.  275,  60  L.  R.  A.  128,  96  Am.  St.  Rep. 
721  and  note ;  Munson  v.  Washband,  31  Conn.  303,  83  Am.  Dec.  151 ;  Barker 
V.  Hibbard,  54  N.  H.  539,  20  Am.  Rep.  160;  Askey  v.  Williams,  74  Tex.  294, 
11  S.  W.  1101,  5  L.  R.  A.  176;  Cobbey  v.  Buchanan,  48  Neb.  391,  67  N.  W. 
176;  Sutton  v.  Heinzle,  84  Kan.  756,  115  Pac.  560,  34  L.  R.  A,  (N,  S.)  238. 
See  "Infants,"  Dec.  Dig.  (Key-No.)  §  50;    Cent.  Dig.  §§  114-127. 

95  Englebert  v.  Troxell.  40  Neb.  195.  58  N.  W.  852,  26  L.  R.  A.  177,  42  Am. 
St.  Rep.  665;  Phelps  v.  Worcester,  11  N.  II.  51;  Dillon  v.  Bowles,  77  Mo. 
603;  Mclsaac  v.  Adams,  190  Mass.  117,  76  N.  E.  654,  112  Am.  St.  Rep.  321, 
5  Ann.  Cas.  729  (in  which  it  is  said,  per  Kuowlton,  C.  J.:  "Ordinarily  rights 
of  property  are  to  be  protected  by  a  guardian,  and  not  left  to  the  care  of  the 
minor  himself  or  to  the  irresponsible  action  of  third  persons").  Contra:  Ep- 
person V.  Nugent,  57  Miss.  45,  34  Am.  Rep.  434 ;  Searcy  v.  Hunter,  81  Tex. 
644,  17  S.  W.  372,  26  Am.  St.  Rep.  837.  And  see  Owens  v.  Gunther,  75  Ark. 
37,  86  S.  W.  851,  5  Ann.  Cas.  130  and  note.  See  "Infants,"  Dec.  Dig.  (Key- 
No.)  §  50;    Cent.  Dig.  §§  114-127. 

fe  Randall  v.  Sweet,  1  Denio  (N.  Y.)  460.  And  see  Kilgore  v.  Rich.  83  Me. 
305,  22  Atl.  176,  12  L.  R.  A.  859,  23  Am.  St.  Rep.  780;  Swift  v.  Bennett,  10 
Cush.  (Mass.)  430 ;  Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345 ;  Price  V.  San- 
ders, 60  Ind.  310;  Haine's  Adm'r  v.  Tarrant,  2  Hill  (S.  C.)  400;  Conn  v,  Co- 
burn,  7  N.  H.  368,  26  Am.  Dec.  746;  Beeler  v.  Young,  1  Bibb  (Ky.)  519; 
Earle  v.  Peale,  1  Salk.  387.  He  mny,  however,  be  held  liable  in  equity  for 
money  borrowed  and  expended  by  him  for  necessaries.  Price  v.  Sanders,  60 
Tnd.  310;  Watson  v.  Cross,  2  Duv.  (Ky.)  147;  Hickman  v.  Hall's  Adm'rs,  5 
Litt.  (Ky.)  .338;  Boelor  v.  Young,  1  Bibb  (Ky.)  521.  See  "Infants,"  Dcr.  Dig. 
(Key-No.)  §  51;    Cent.  Dig.  §  111. 


198  CAPACITY   OF   PARTIES  (Ch.  6 

Necessaries  to  Wife  and  Children 

A  man  is  bound  by  law  to  support  and  care  for  his  wife,  and  an 
infant  is  therefore  liable  for  necessaries  furnished  her.»^  And  he  has 
also  been  held  liable  for  necessaries  furnished  to  his  child. ^^  There 
is,  however,  authority  for  the  contrary  view  as  to  children.^® 

Persons  Supplying  Infant  Act  at  Their  Peril 

Whether  things  supplied  to  an  infant  were  necessaries  is  to  be  de- 
termined by  the  infant's  actual  circumstances.  If  a  tradesman  sup- 
plies expensive  goods  to  an  infant  because  he  thinks  that  the  in- 
fant's circumstances  are  better  than  they  really  are,  or  if  he  supplies 
goods  of  a  useful  class,  not  knowing  that  the  infant  is  already  suffi- 
ciently supplied,  he  does  so  at  his  peril. ^ 

Question  of  Law  or  Fact 

Difficulty  has  arisen  in  determming  the  respective  provinces  of 
the  court  and  jury  in  ascertaining  whether  things  supplied  to  an 
infant  were  necessaries.  It  is  frequently  stated  in  the  American 
cases  that  the  question  whether  articles  come  within  the  class  of 
necessaries  is  for  the  court,  and  that  the  question  whether  they 
were  necessaries  in  fact  is  for  the  jury.^'  In  England  it  has  been 
settled  that  the  question  whether  the  articles  were  necessaries  is  one 
of  fact,  and  therefore  for  the  jury ;  but  that,  like  other  questions  of 

97Cantine  v.  Phillips'  Adm'r,  5  Har.  (Del.)  42S;  Price  v.  Sanders,  60  Ind. 
315 ;  Chapman  v.  Hughes,  61  Miss.  339 ;  Chappie  v.  Cooper,  13  Mees.  &  W. 
252,'  259 ;  Turner  v.  Frisby,  1  Strange,  168 ;  People  v.  Moores,  4  Denio  (N. 
Y.)'520,  47  Am.  Dec.  272.     See  "Infants,"  Dec.  Dig.   (Key-No.)  §  50;    Cent. 

Dig.  B  1U'121. 

98  Vnn  Yalkinburgh  v.  Watson.  13  Johns.  (N.  Y)  4S0,  7  Am.  Dec.  39u ;  Ex 
parte  Ryder,  11  Paige  (N.  Y.)  185,  42  Am.  Dec.  109;  post,  p.  645.  And  see 
McConnell  v.  McConnell.  75  N.  H.  385,  74  Atl.  875,  holding  a  female  in- 
fant liable  for  necessaries  furnished  herself  and  child.  See  "Infants,''  Dec. 
Dig.  (Key-No.)  %  50;    Cent.  Dig.  §§  114-127. 

9  9  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499.  See  Tiffany,  Pers.  &  Dom. 
Rel.  230,  269.  See  "Parent  and  Child,"  Dec.  Dig.  (Key-No.)  §  3;  Cent.  Dig. 
iS6. 

1  Brayshaw  v.  Eaton,  7  Scott,  at  page  187 ;  Barnes  v.  Toye,  13  Q.  B.  Div. 
410;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am.  Dec.  542;  Kline  v. 
L'Amoureux,  2  Paige  (N.  Y.)  419,  22  Am.  Dec.  652 ;  Davis  v.  Caldwell,  12  Cush. 
(Mass.)  513;  Rivers  v.  Gregg,  5  Rich.  Eq.  (S.  C.)  274;  Monumental  Bldg.  Ass'n 
V.  Herman,  33  Md.  131 ;  Perrin  v.  Wilson,  10  Mo.  451 ;  Nicholson  v.  Spencer, 
11  Ga.  607.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  50;  Cent.  Dig.  §§  111,-121. 

2  Tupper  V.  Cadwell,  12  Mete.  (Mass.)  559,  503,  46  Am.  Dec.  704;  Merriam 
V.  Cunningham,  11  Cush.  (Mass.)  40,  44;  Bent  v.  Manning,  10  Vt  225;  Stanton 
7.  Willsou,  3  Day  (Conn.)  37,  56,  3  Am.  Dec.  255;  Glover  v.  Ott's  Adm'r,  1 
McCord  (S.  C.)  572 ;  Beeler  v.  Young,  1  'Bibb  (Ky.)  519 ;  Grace  v.  Hale,  2 
Humph.  (Tenn.)  27,  36  Am.  Dec.  296;  McKANNA  v.  MERRY,  61  111.  177, 
Throckmorton,  Cas.  Contracts,  135.  -See  ''Infants,"  Dec.  Dig.  (Key-No.)  §  102; 
Cent.  Dig.  §  121. 


§§    95-97)  LIABILITY   FOK    NECESSARIES  199 

tact,  it  should  not  be  left  to  the  jury  unless  there  is  evidence  on 
which  they  can  reasonably  find  in  the  affirmative.'  Practically, 
there  is  little  difference  in  the  two  rules,  for  the  cases  involving 
articles  intrinsically  incapable  of  being-  necessaries  are  rare,  and 
the  question  in  most  cases  depends  on  the  particular  circumstances. 

Express  Contract  for  Necessaries 

The  obligation  of  an  infant  to  pay  for  necessaries  being  quasi 
contractual,  he  is  liable  without  an  express  contract.*  The  law 
creates  an  obligation  on  his  part  to  pay  what  the  necessaries  are 
reasonably  worth,  but  his  express  contract  is  voidable."^  If  he  has 
given  his  note  or  other  negotiable  instrument  in  payment,  the  seller 
can  recover  no  more  than  the  reasonable  value,  and  on  principle,  in 
such  a  case,  there  can  be  no  recovery  on  the  note.®  In  many  juris- 
dictions, however,  anomalously,  an  action  may  be  maintained  upon 
the  contract,  but  the  real  value  will  be  inquired  into,  and  the  recov- 
ery limited  to  that  amount,'^ 

8  Ryder  v.  Wombwell,  L.  R.  3  Exch.  93.  See,  also,  Peters  v.  Fleming,  6 
M.  &  W.  42 ;  Wharton  v.  Mackenzie,  5  Q.  B.  606 ;  Davis  v,  Caldwell,  12  Gush. 
(Mass.)  512,  per  Shaw,  C.  J. ;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am. 
Dec.  542;  Mohney  v.  Evans,  51  Pa.  80.  See  ''Infants"  Dec.  Dig.  (Key-No.)  § 
102;  Cent.  Dig.  §  127. 

*  Gay  V.  Ballon,  4  Wend.  (N.  Y.)  403,  21  Am.  Dec.  158 ;  Trainer  v.  Trumbull, 
141  Mass.  530,  6  N.  E.  761 ;  Gregory  v.  Lee,  64  Conn.  407,  30  Atl.  53,  25  L. 
R.  A.  618.  See  Keener,  Quasi  Contracts,  20.  See  "Infants"  Dec.  Dig.  (Key- 
No.)  §  50;  Cetit.  Dig.  §§  114,  125. 

5  Earle  v.  Reed,  10  Mete.  (Mass.)  387 ;  Davis  v.  Gay,  141  Mass.  531,  6  N.  E. 
549;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Parsons  v.  Keys,  43  Tex.  557;  Hyer 
V.  Hyatt,  3  Cranch,  C.  C.  276,  Fed.  Cas.  No.  6,977;  Dubose  v.  Wheddon,  4 
McCord  (S.  C.)  221 ;  Locke  v.  Smith,  41  N.  H.  346 ;  International  Text-Book 
Co.  V.  :McKone,  133  Wis.  200,  113  N.  W.  438.  See  "Infants,"  Dec.  Dig.  (Key- 
No.)  §  50;  Cent.  Dig.  §§  llJt,  125. 

«  Swasey  v.  Vanderheyden's  Adm'r,  10  Johns.  (N.  Y.)  33 ;  Fen  ton  v.  White, 
4  N,  J.  Law,  111 ;  McMinn  v.  Richmonds,  6  Yerg.  (Tenn.)  9 ;  Bouchell  v.  Clary, 
3  Brev.  (S.  C.)  194;  McCrillis  v.  How,  3  N.  H,  348;  Henderson  v.  Fox,  5  Ind. 
489;  Morton  v.  Steward,  5  111.  App.  533.  See  "Infants,"  Dec.  Dig.  (Key-No.) 
§§  50,  52;  Cent.  Dig.  §§  114,  125,  128. 

7  Earle  v.  Reed,  10  Mete.  (Mass.)  387 ;  Bradley  v.  Pratt,  23  Vt  378 ;  Dubose 
V.  Wheddon,  4  McCord  (S.  C.)  221;  Conn  v.  Cobum,  7  N.  H.  368,  26  Am. 
Dec.  746;  Aaron  v.  Harley,  6  Rich.  Law  (S.  C.)  26;  Askey  v.  Williams,  74 
Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176;  Guthrie  v.  Morris,  22  Ark.  411; 
Trairer  v.  Trumbull,  141  Mass.  530,  6  N.  E.  761.  See  "Infants,"  Dec.  Dig. 
(Key-No.)  §  50;  Cent.  Dig.  §§  111,,  125. 


2U0  CAPACITY   OF   PARTIES  (Ch.  C 


SAME— RATIFICATION    AND    AVOIDANCE 

98.  Where  the  contract  of  an  infant  is  voidable,  he  may  ratify  it, 
and  thereby  render  it  binding;  or  he  may  disaffirm  it,  and 
thereby  render  it  void. 

Where  the  contract  of  an  infant  is  voidable  only,  he  may  ratify 
it  on  attaining  his  majority,  and  thereby  assume  the  rights  and 
liabilities  arising  from  it;  or  he  may,  before  ratification,  but  not 
afterwards,  disaffirm  or  repudiate  it,  and  thereby  escape  any  lia- 
bility under  it.  The  reader  will  remember  that  such  a  ratification 
is  an  illustration  of  the  class  of  cases  in  which  a  past  consideration 
will  support  a  subsequent  promise.®  Some  contracts  are  valid  un- 
less they  are  rescinded.  Other  contracts  are  invalid  unless  they 
are  ratified. 

When  Disaffirmance  Necessary 

The  rule  seems  to  be  that,  where  an  infant  acquires  an  interest 
in  permanent  property,  to  which  obligations  attach,  or  enters  into 
a  contract  which  involves  continuous  rights  and  duties,  benefits  and 
liabilities,  and  takes  benefits  under  the  contract,  he  may  become 
bound,  unless  he  expressly  disaffirms  the  contract." 

As  illustrating  this  rule,  an  infant  lessee,  who  occupies  the  prem- 
ises after  reaching  his  majority,  is  liable  for  arrears  of  rent^whjch 
accrued  during  his  minority.^"  Persons  who  have  become  possess- 
ed of  shares  in  a  corporation  during  infancy,  if  they  hold  them  after 
they  reach  their  majority,  are  liable  for  calls  which  accrued  while 
they  were  infants. ^^     An  infant  may  become  a  partner,  and  at  com- 

8  Ante,  p.  174. 

9  Clemmer  v.  Price  (Tex.  CIt.  App.)  12.5  S.  W.  604.  Some  cases  declare 
that,  while  an  infant's  exccut(ivy  contracts  are  inoperative  until  ratified,  his 
executed  contracts  are  good  until  rescinded.  Minock  v.  Shortrldge,  21  Mich. 
304 ;  Edgerly  v.  Shaw,  25  N.  H.  514,  57  Am.  Dec.  349 ;  Beardsley  v.  Hotchkiss, 
96  N.  Y.  201.  But  the  cases  are  in  conflict,  as  is  shown  by  the  different  views 
entertained  as  to  whether  a  conveyance  is  ratified  by  silence  and  acquiescence 
after  majority.  Post,  p.  210.  On  the  other  hand,  if  an  infant  purchases  prop- 
erty and  retains  it  for  an  unreasonable  time  after  majority  without  disaf- 
firmance, he  is  generally  held  to  have  ratified.  Boyden  v.  Boydeu,  9  Mete. 
(Ma.ss.)  519;  Ellis  v.  Alford,  64  Miss.  8,  1  South.  155;  post,  p.  209.  See  ''In- 
fants,"  Dec.  Dig.  {Key-l^'o.)  §  57;  Cent.  Dig.  §§  136-1J,S,  151. 

10  Rolle,  Abr.  731. 

11  Northwestern  R.  Co.  v.  McMichael,  5  Exch.  114.  It  was  said  in  this 
case:  "They  have  been  treated,  therefore,  as  persons  in  a  different  situation 
from  mere  contractors,  for  then  they  would  have  been  exempt;  but  in  truth 
they  are  purchasers  who  have  acquired  an  interest,  not  in  a  mere  chattel,  but 
In  a  subject  of  a  permanent  nature,  either  by  contract  with  the  company,  or 
purchase  or  jievolutlon  from  those  who  have  contracted,  and  with  certain  obli- 


§    98)  RATIFICATION    AND   AVOIDANCE  201 

mon  law  may  be  entitled  to  benefits,  though  not  liable  for  debts, 
arising  from  the  partnership  during  his  infancy ;  though  equity 
would  not  allow  him  to  claim  the  benefits  without  being  charged 
with  the  losses.  Unless,  on  attainment  of  majority,  there  is  an  ex- 
press rescission  and  disclaimer  of  the  partnership,  the  infant  will 
be  liable  for  losses  accruing  after  he  became  of  age.  By  holding 
himself  out  as  a  partner  he  contracts  a  continual  obligation,  and 
that  obligation  remains  until  he  puts  an  end  to  it  by  a  disclaimer.^ ^ 
And  so,  where  shares  in  a  corporation  were  assigned  to  an  infant 
who  attained  his  majority  some  months  before  an  order  was  made 
for  winding  up  the  company,  it  was  held  that,  in  the  absence  of  any 
disclaimer  of  the  shares,  he  was  liable  as  a  contributory.^^ 

When  Ratification  is  Necessary 

The  cases  of  which  we  have  just  been  speaking,  and  which  re- 
quire an  express  disclaimer  to  avoid  the  efifect  of  the  contract,  are 
all  cases  in  which  an  interest  was  acquired  in  permanent  property  to 
which  liabilities  attached,  or  in  which  the  contract  entered  into  by 
the  infant  involved  continuous  rights,  duties,  and  liabilities.  If,  on 
the  other  hand,  the  promise  of  the  infant  is  to  perform  some  isolat- 
ed act,  or  if  the  contract  is  wholly  executory,  it  will  not  be  binding 
on  him  unless  he  expressly  ratifies  it  on  coming  of  age.^*  As  we 
have  seen,  if  a  person  who  has  entered  into  a  partnership  during 
his  minoritv  fails  to  disaffirm  the  agreement  after  reaching  his  ma^ 
jority,  and  so  holds  himself  out  as  a  partner,  he  will  be  liable  for 
debts  of  the  firm  contracted  after  he  became  of  age ;  but  he  will  not 
be  liable  for  debts  of  the  firm  contracted  during  his  minority,  un- 
less he  ratifies  them.^^  Some  courts  hold  that  his  ratification  of  the 
partnership  agreement  is  a  ratification  of  debts  of  the  firm  contract- 

gations  attached  to  it  which  they  were  bound  to  discharge,  and  have  thereby 
been  placed  in  a  situation  analogou.s  to  an  Infant  purchaser  of  real  estate,  who 
has  taken  possession,  and  thereby  becomes  liable  to  all  the  obligations  at- 
tached to  the  estate;  for  instance,  to  pay  rent  in  the  case  of  a  lease  rendering 
rent,  *  ♦  *  unless  they  have  elected  to  waive  or  disagree  the  purchase 
altogether,  either  during  infancy  or  at  full  age,  at  either  of  which  times  it  is 
competent  for  an  infant  to  do  so."  See  "Infants"  Dec.  Dig.  (Key-Mo.)  §  57; 
Cent.  Din.  §§  1S6-1.',S,  151. 

i2Goode  V.  Harrison,  5  Barn.  &  Aid.  159;  Miller  v.  Sims,  2  Hill  (S.  C.) 
479.     See  "Infants,"  Dec.  Dig.  {Key-No.)  §  57;  Cent.  Dig.  §§  136-1 'i8,  151. 

i3Lumsden"s  Case,  4  Ch.  App.  31.  See  "Infants,"  Dec.  Dig.  (Key-yo.)  §  57; 
Cent.  Dig.  §§  126-1.',S,  151. 

14  Whitney  v.  Dutch,  14  Mass.  4G0,  7' Am.  Dec.  229;  Carrell  v.  Totter,  23 
Mich.  379;  Savage  v.  Liehlyter,  59  Ark.  1,  2G  S.  W.  12.  See,  also,  post,  p. 
im.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  186-11,8,  151. 

m  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27;  Todd  v.  Clapp,  118  Mass. 
49.'i;  Bush  v.  Linthlcum.  r,'.\  Md.  344.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  57; 
Cent.  Dig.  §§  1S6-1J,8,  l5i. 


202  CAPACITY   OF   PARTIES  (Cll.  6 

ed  during  his  minority,^®  and  this  would  seem  the  proper  doctrine; 
but  the  contrary  has  been  held.^'' 


SAME— WHO   MAY   AVOID    CONTRACT 

99.  The  privilege  of  infancy  is  personal  to  the  infant,  and  he  alone 

can  take  advantage  of  it  during  his  life  and  sanity. 

100.  On  his  death,  or  if  he  becomes  insane,  his  contracts  may  be 

avoided  by  his  heirs,  personal  representatives,  or  conserv- 
ator or  guardian. 

101.  The  other  party  to  the  contract,  not  being  himself  under  dis- 

ability, is  bound  if  the  infant  chooses  to  hold  him. 

The  privilege  of  infancy  is  intended  to  protect  the  infant,  and 
during  his  life  and  sanity  he  alone  can  take  advantage  of  it.^'  It 
is  even  held  that  his  guardian  cannot  avoid  his  contracts  for  him, 
though  there  is  some  dictum  to  the  contrary.^®  On  his  death,  how- 
ever, or  if  he  becomes  insane,  his  contracts  may  be  avoided  by  his 

16  Salinas  v.  Bennett,  33  S.  C.  285,  11  S.  E.  968 ;  Miller  v.  Sims,  2  Hill  (S. 
C.)  479.    See  ''Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  12G-1J,8,  151. 

17  Mehlhop  V.  Rae,  90  Iowa,  30,  57  N.  W.  650;  Crabtree  v.  May,  1  B.  Mon. 
(Ky.)  289 ;  Minock  v.  Shortridge,  21  Mich.  304.  And  see  cases  cited  in  note 
15,  supra.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  186-11,8, 
151. 

18  Keane  v.  Boycott,  2  H.  Bl.  511,  Swell's  Cas.  17;  Holt  v.  Ward  Clar- 
encieux,  2  Strange,  937 ;  Nightingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec. 
101 ;  MANSFIELD  v.  GORDON,  144  Mass.  168,  10  N.  E.  773,  Throckmorton, 
Cas.  Contracts,  137;  Harris  v.  Ross,  112  Ind.  314,  13  N.  E.  873;  Hartness 
V.  Thompson,  5  Johns.  (N.  Y.)  160;  Beardsley  v.  Hotchkiss,  96  N.  Y.  liOl ; 
Baldwin  v.  Rosier  (C.  C.)  48  Fed.  810;  Hooper  v.  Payne,  94  Ala.  223,  10 
South.  431 ;  Chambers  v.  Ker,  6  Tex.  Civ.  App.  373,  24  S.  W.  1118 ;  Dentler  v. 
O'Brien,  56  Ark.  49,  19  S.  W.  Ill;  Holmes  v.  Rice,  45  Mich.  142,  7  N.  W. 
772 ;  Garner  v.  Cook,  30  Ind.  331 ;  OUver  v.  Houdlet,  13  Mass.  237,  7  Am.  Dec 
134;  Van  Bramer  v.  Cooper,  2  Johns.  (N.  Y.)  279;  Alsworth  v.  Cordtz,  31 
Miss.  32.  In  an  action,  for  instance,  for  enticing  away  a  servant  from  plain- 
tiff's service,  the  defendant  cannot  escape  liability  by  showing  that  the  serv- 
ant was  an  infant,  and  was  therefore  not  bound  by  his  contract  with  the 
plaintiff.  Keane  v.  Boycott,  supra.  The  surety  on  a  bond  given  by  an  infant, 
and  afterwards  disaffirmed  by  him,  has  been  held  liable.  Kyger  v.  Sipe,  89 
Va.  507,  16  S.  E.  627.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig. 
%150. 

19  See  Oliver  v.  Houdlet,  13  Mass.  240,  7  Am.  Dec.  134;  Irvine's  Heirs  v. 
Crockett,  4  Bibb  (Ky.)  437;  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec. 
117;  Cf.  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  post,  p.  205.  See  "Infants," 
Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig.  §  150. 


§§    99-101)  WHO    MAY    AVOID    CONTRACT  203 

heirs,2°  his  personal  representatives,^^  or  his  guardian  or  conserva- 
tor.22  The  reason  of  the  rule,  it  has  been  said,  extends  only  to 
them  because  the  privilege  is  conferred  for  his  sole  benefit.  While 
living,  he  should  be  the  exclusive  judge  of  that  benefit,  and  when 
dead  those  alone  should  interfere  who  legally  represent  him.  Could 
his  contracts  be  avoided  by  third  persons,  the  principle  would  oper- 
ate, not  for  his,  but  for  their,  benefit ;  not  when  he  chose  to  avail 
himself  of  his  privileges,  but  when  strangers  elected  to  do  it.^^ 

The  other  party  to  the  contract,  not  being  himself  under  a  disa- 
bility to  contract,  cannot  avoid  it.  He  is  bound  if  the  infant  choos- 
es to  hold  him  by  ratifying  the  contract  on  becoming  of  age.^*  A 
court  of  equity,  however,  will  not  grant  an  infant  specific  perform- 
ance of  a  contract  by  the  aduft."  Of  course,  those  contracts  which 
are  held  void,  and  not  merely  voidable,  at  the  infant's  option,  are 
of  no  efifect  at  all,  and  can  bind  neither  party. 

20  Illinois  Land  &  Loan  Co.  v.  Bonner,  75  111.  315 ;  Harvey  v.  Briggs,  68 
Miss.  60,  8  South.  274,  10  L.  R.  A.  62 ;  Searcy  v.  Hunter,  81  Tex.  644,  17  S. 
W.  372,  26  Am.  St.  Rep.  837 ;  Veal  v.  Fortson,  57  Tex.  487 ;  Ferguson  v.  Bell's 
Adm'r,  17  Mo.  351;  Levering  v.  Heighe,  2  Md.  Ch.  81,  88;  Breckenridge's 
Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  248,  19  Am.  Dec.  71.  See  "Infanis," 
Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig.  §  150. 

21  Parsons  v.  HIU,  8  Mo.  135;  Hastings  v.  Dollarhide,  24  Cal.  207;  Person 
V.  Chase,  37  Vt.  650,  88  Am.  Dec.  630;  JefCord's  Adm'r  v.  Ringgold,  6  Ala.  547; 
Hussey  v.  Jewett,  9  Mass.  100;  Smith  v.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28; 
Breckenridge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  248,  19  Am.  Dec.  71. 
See  "Infants,"  Dec.  Dig.  {Key-No.)  §  58;  Cent.  Dig.  §  150. 

2  2  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117.  See  "Infants," 
Dec.  Dig.  {Key-No.)  §  58;  Cent.  Dig.  §  150. 

28  MANSFIELD  v.  GORDON,  144  Mass.  168,  10  N.  E.  773,  Throckmorton, 
Cas.  Contracts,  137.  Though  ordinarily  a  plea  of  Infancy  is  personal,  a 
beneficiary  in  a  policy  on  the  infant's  life  may  plead  it  in  answer  to  the 
company's  defense  of  false  warranties  in  the  application;  for  otherwise  an 
infant's  contract  of  insurance  would  be  in  effect  binding  on  him  during  his 
minority.  O'Rourke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  23  R.  I.  457,  50 
Atl.  834,  57  L.  R.  A.  496,  91  Am.  St.  Rep.  643.  See  "Infants,"  Dec.  Dig.  {Key- 
No.)  §  5S;  Cent.  Dig.  §  150. 

24  Holt  V.  Ward  Clarencieux,  2  Strange,  937;  Thompson  v.  Hamilton,  12 
Pick.  (Mass.)  425,  23  Am.  Dec.  619;  Hunt  v.  Peake,  5  Cow.  (N.  Y.)  475,  15 
Am.  Dec.  475;  Field  v.  Herrick,  101  111.  110.  See  "Infants,"  Dec.  Dig.  {Key- 
No.)  §§  //7,  58;  Cent.  Dig.  §  150. 

25  Flight  V.  EoUand,  4  Russ.  298.  See  "Infants,"  Dec.  Dig.  {Key-No.)  §  58; 
Cent.  Dig.  §  150. 


204  CAPACITY   OF   PARTIES  (Cll.  6 


SAME— TIME  OF  AVOIDANCE 

102.  Executory  contracts,  or  executed  contracts  relating  to  person- 

alty, may  be  avoided  by  an  infant  either  before  or  after  at- 
taining his  majority;  but  conveyances  of  land  cannot  be 
disaffirmed  durinig  minority,  though  he  may  enter  and  take 
the  profits, 

103.  As  a  rule,  mere  lapse  of  time  after  attaining  his  majority  will 

not  bar  an  infant's  disaffirmance  of  his  executory  contract, 
but  in  a  few  states  he  is  required  to  disaffirm  within  a  rea- 
sonable time. 

104.  As  a  rule,  executed  contracts  must  be  disaffirmed  within  a 

reasonable  time  after  attaining  majority;  but  in  some 
states  it  is  held  that  the  right  to  avoid  a  conveyance  of 
land  is  not  barred  by  acquiescence  for  any  period  short  of 
that  prescribed  by  the  statute  of  limitations. 

An  infant's  executory  contract  may  be  avoided  by  him  at  any 
time,  either  before  or  after  attaining  his  majority,  by  refusing  to 
perform  it,  and  pleading  his  infancy  when  sued  for  breach  of  the 
contract.^® 

In  the  case  of  executed  contracts  a  distinction  is  made  between 
contracts  relating  to  his  land  and  those  relating  to  his  personalty. 
A  deed  of  land  executed  by  an  infant  cannot  be  disaffirmed  during 
his  minority.  He  may  enter  on  the  land  and  tr.ke  the  profits  until 
the  time  arrives  when  he  has  the  legal  capacity  to  affirm  or  disaf- 
firm the  deed ;  but  the  deed  is  not  rendered  void  by  the  entry.  It 
may  still  be  affirmed  after  he  reaches  his  majority.'^^ 

2«  Reeves,  Dom.  Rel.  254;  RICE  v.  BOYER,  108  lud.  472,  9  N.  E.  420.  58 
Am.  Rep.  53;  Throckmorton,  Cas.  Contracts,  143;  Adams  v.  Beall,  67  Md. 
53,  8  Atl.  GG4,  1  Am.  St*.  Rep.  379;  Ross  P.  Curtice  Co.  v.  Kent,  89  Neb.  4m, 
131  N.  W.  944.  An  infant  may  avoid  his  contracts  for  personal  services  daring 
his  minority.  Vent  v.  Osgood,  19  Picli.  CNiass.)  572;  Ray  v.  Haines,  52  111. 
485;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  604,  1  Am.  St.  Rep.  379;  Gaffney  v. 
Hayden,  110  Mas.s.  137,  14  Am.  Rep.  5S0;  Vehue  v.  Pinkham,  GO  Me.  142; 
Whitmarsh  v.  Hall,  3  Denio  (N.  Y.)  375.  See  "Infants,"  Dec.  Dig.  (Key-No.) 
§  58;  Cent.  Dig.  §§  149-160. 

27  Welch  V.  Buuce,  83  Ind.  382;  Zouch  v.  Parsons.  3  Burrows,  1794;  Irvine 
V.  Irvine,  5  Minn.  61  (Gil.  44);  Hastings  v.  DoUarhide,  24  Cal.  195;  Bool  v. 
Mix,  17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285;  McCormic  v.  Leggett,  53  N.  C. 
425 ;  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626 ;  Baker  v.  Kennett,  54  Mo.  88.  An 
infant,  however,  may,  before  attaining  his  majority,  plead  infancy  in  a  suit 
to  foreclose  a  mortgage  on  land.  Schneider  v.  Staihr,  20  Mo.  269.  See  ''In- 
fants;' Dec.  Dig.   {Kev-^'o.)  §  SI;  Cent.  Dig.  §§  41,  J,6,  50-63. 


§§    102-104)  TIME    OF   AVOIDANCE  205 

The  rule,  however,  does  not  apply  to  a  sale  and  manual  delivery 
of  chattels  by  an  infant.  Such  a  contract  may  be  avoided  by  him 
while  he  is  still  an  infant.^^  In  a  New  York  case  it  was  said :  "The 
general  rule  is  that  an  infant  cannot  avoid  his  contract,  executed 
by  himself,  and  which  is  therefore  voidable  only,  while  he  is 
within  age.  He  lacks  legal  discretion  to  do  the  act  of  avoidance. 
But  this  rule  must  be  taken  with  the  distinction  that  the  delay  shall 
not  work  unavoidable  prejudice  to  the  infant,  or  the  object  of  his 
privilege,  which  is  intended  for  his  protection,  would  not  be  an- 
swered. When  applied  to  a  sale  of  his  property,  it  must  be  his 
land;  a  case  in  which  he  may  enter  and  receive  the  profits  until  the 
power  of  finally  avoiding  shall  arrive.  ♦  *  *  Should  the  law 
extend  the  same  doctrine  to  sales  of  his  personal  estate,  it  would 
evidently  expose  him  to  great  loss  in  many  cases,  and  we  shall  act 
up  to  the  principle  of  protection  much  more  effectually  by  allowing 
him  to  rescind  while  under  age,  though  he  may  sometimes  mis- 
judge, and  avoid  a  contract  which  is  for  his  own  benefit.  The  true 
rule,  then,  appears  to  me  to  be  that,  where  the  infant  can  enter  and 
hold  the  subject  of  the  sale  till  his  legal  age,  he  shall  be  incapable 
of  avoiding  till  that  time ;  but  where  the  possession  is  changed,  and 
there  is  no  legal  means  to  regain  and  hold  it  in  the  meantime,  the 
infant,  or  his  guardian  for  him,  has  the  right  to  exercise  the  power 
of  rescission  immediately."  ^^ 

The  rule  is  very  general,  almost  universal,  that  an  infant  may 
avoid  any  contract  in  relation  to  his  personal  property  before  he  is 
of  age.^°  Some  courts  have  held  that  he  cannot  disaffirm  a  part- 
nership agreement  during  his  minority,  so  as  to  recover  what  he  has 

a«  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119, 
31  Am.  Dec.  285;  Zouch  v.  Parsons,  3  Burrows,  1794;  Adams  v.  Beall,  07  Md. 
53,  8  Atl.  6G4,  1  Am.  St.  Rep.  379;  Shipman  v.  Ilorton,  17  Conn.  4S1 ;  Riley 
V.  Mallory,  33  Conn.  207;  Willis  v.  Twambly,  13  Mass.  204;  Carr  v.  Clough, 

26  N.  H.  280,  59  Am.  Dec.  345;  Chapin  v.  Shafer,  49  N.  Y.  407;  Towle  v. 
Dresser,  73  Me.  252;  Hoyt  v.  Wilkiuson,  57  Vt.  404;  Carpenter  v.  Carpenter, 
45  Ind.  142 ;  Cogley  v.  Cushman,  16  Minn.  397  (Gil.  354) ;  Price  v.  Furmau, 

27  Vt.  2G8,  65  Am.  Dec.  194.  See  ''Infants,"  Dec.  Dig.  (Key-No.)  §  oS;  Cent. 
Dig.  §§  lhU-160. 

2  9  Stafford  v.  Roof,  supra.  See  '"Infants,"  Dec.  Dig.  (Key-No.)  §  31;  Cent. 
Dig.  §§  41,  46,  50-63. 

80  See  Shirk  v.  Shultz,  113  Ind.  571,  15  N.  E.  12  (collecting  cases) ;  RICE 
T.  BOYER,  108  Ind.  472,  9  N.  E.  420,  58  Am.  Rep.  53,  Throckmorton,  Cas. 
Contracts,  143;  Hoyt  v.  Wilkinson,  57  Vt.  404;  Price  v.  Furman,  27  Vt.  268, 
65  Am.  Dec.  194 ;  Willis  v.  Twambly,  13  Mass.  204 ;  Stafford  v.  Roof,  9  Cow. 
(N.  Y.)  628;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119.  31  Am.  Dec.  285;  Petrie  v. 
Williams,  68  Hun,  589,  23  N.  Y.  Supp.  237 ;  Cogley  v.  Cushman,  16  Minu.  397 
(Cil.  3.54);  Wuller  v.  Chuse  Grocery  Co.,  241  111.  398,  89  N.  E.  796,  28  L.  R. 
A,  (N.  S.)  128,  132  Am.   St.  Rep.  216,  16  Ann.  Cas.  522.     Contra:     Lansing 


206  CAPACITY   OF   PARTIES  (Ch.  6 

put  into  the  firm  but  must  wait  until  he  attains  his  majority."' 
Other  courts  hold  the  contrary,  on  the  ground  that  it  is  a  contract 
in  relation  to  his  personalty,  and  that  all  contracts  of  an  infant  in 
relation  to  personal  property  may  be  disaffirmed  during  his  minor- 
ity.'" 

As  to  whether  a  contract  must  be  disaffirmed  by  an  infant  with- 
in a  reasonable  time  after  he  attains  his  majority,  the  authorities 
are  conflicting.  In  the  case  of  executory  contracts  requiring  rati- 
fication to  render  them  binding,  the  right  to  avoid  them  cannot  be 
barred  by  mere  silence,  without  more.  It  may  be  otherwise  where 
the  circumstances  are  such  as  to  make  it  the  infant's  duty  to  speak, 
for  in  such  a  case  silence  or  acquiescence  may  amount  to  a  ratifica- 
tion.^' 

In  the  case  of  conveyances  of  land,  sales  and  delivery  of  chattels, 
and  the  like,  many  courts  hold  that  the  infant  must  disaffirm  the 
contract  within  a  reasonable  time  after  he  attains  his  majority,  or 
be  held  "to  have  ratified  it,  and  to  be  barred  from  avoiding  it." 
Many  courts,  however,  have  held  that  a  conveyance  of  land  by  an 
infant  need  not  be  disaffirmed  within  any  period  short  of  that  pre- 
scribed by  the  statute  of  limitations,  and  that  acquiescence  for  any 
shorter  time  will  not  bar  his  right  to  avoid  it." 

V  Railroad  Co.,  126  Mich.  663,  86  N.  W.  147,  86  Am.  St.  Rep.  567.  And  see 
I'ippen  V.  Insurance  Co.,  1^0  N.  C.  23,  40  S.  E.  822,  57  L.  R.  A.  505.  See 
"Infants;'  Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig.  §§  1J,9-160. 

siDunton  v.  Brown,  31  Mich.  182;  Armitage  v.  Widoe.  36  Mich.  130;  Bush 
V.  Linthieum,  59  Md.  344  (but  see  Adams  v.  Beall,  67  Md.  5.3,  8  Atl.  664,  1 
Am.  St.  Rep.  379).  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  5S;  Cent.  Dig.  §§ 
1^9-160. 

32  Shirk  V.  Shultz,  113  Ind.  571,  15  N.  E.  12  (collecting  cases) ;  Adams  v. 
Beall,  67  Md.  53,  8  Atl.  6G4,  1  Am.  St  Rep.  379.  -See  ''Infants;'  Dec.  Dig. 
(Key-No.)  §  58;  Cent.  Dig.  §§  1J,9-160. 

33  Ante,  p.  201 ;  post,  p.  210. 

84  Delano  v.  Blake,  11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617;  Goodnow  v. 
Empire  Lumber  Co.,  31  Minn.  468,  18  N.  W.  283,  47  Am.  Rep.  798  (collecting 
the  cases  pro  and  con);  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dec.  589; 
Dolph  V.  Hand,  156  Pa.  91,  27  Atl.  114,  36  Am.  St.  Rep.  25;  Amey  v.  Cockey, 
73  Md.  297,  20  Atl.  1071 ;  Ihley  v.  Padgett,  27  S.  C.  300,  3  S.  E.  468 ;  Sanders 
V.  Bennett  (Ky.)  1  S.  W.  436;  Scott  v.  Buchanan,  11  Humph.  (Tenn.)  468; 
Aldrich  V.  Funk,  48  Hun,  367,  1  N.  Y.  Supp.  543 ;  Ward  v.  Laverty,  19  Neb. 
429,  27  N.  W.  393;  Thormaehlen  v.  Kaeppel,  86  Wis.  378,  56  N.  W.  1089;  Kline 
vrBe'ehe,*6  Conn.  506;  Clemmer  v.  Price  (Tex.  Civ.  App.)  125  S.  W.  604  (con- 
veyance of  land  to  infant).  An  infant's  delay  of  less  than  sis  months  after 
majority  in  avoiding  a  deed  of  land,  with  knowledge  that  purchasers  from 
his  grantee  are  making  improvements,  does  not  estop  him.  Rundle  v.  Spencer, 
67  Mich.  189,  34  N.  W.  54S.  -See  "Infants;'  Dec.  Dig.  (Key-No.)  §§  31,  58; 
Cent.  Dig.  §§  41,  J,G,  50-63,  11,9-160. 

85  Drake's  Lessees  v.  Ramsay,  5  Ohio,  251 ;  Prout  v.  Wiley,  28  Mich.  164 ; 
Lacy  V.  Pixler,  120  Mo.  383,  25  S.  W.  206 ;  Sims  v.  Everhardt,  102  U.  S.  300, 


§§    105-107)  WHAT  AM0UNT8  TO   RATIFICATION  207 

It  is  provided  by  statute  in  some  states  that  an  infant  is  bound  on 
all  his  contracts  unless  he  disaffirms  them  within  a  reasonable 
time.'* 


SAME— WHAT  AMOUNTS  TO  RATIFICATION 

105.  In  some  jurisdictions,  by  statute,  ratification  of  a  contract  by 

an  infant  must,  subject  to  specified  exceptions,  be  in  writ- 
ing, signed  by  him  or  his  agent, 

106.  In  the  absence  of  such  a  provision,  ratification  may  be  by  an 

express  new  promise,  orally  or  in  writing;  or  it  may  be 
implied  from  declarations  or  conduct  clearly  showing  an 
intention  to  be  bound. 

107.  The  promise  must  be  made  or  the  acts  done  by  the  infant 

understandingly,  but  the  cases  are  in  conflict  as  to  wheth- 
er knowledge  of  the  legal  right  to  avoid  the  contract  is 
necessary. 

Writing  Required  by  Statute 

In  some  jurisdictions  it  is  declared  by  statute  that,  with  specified 
exceptions,  no  action  shall  be  maintained  on  any  contract  made  by 
an  infant,  unless  he,  or  some  person  lawfully  authorized,  has  rati- 
fied it  in  writing  after  he  attained  his  majority.*^  No  particular 
form  of  words  is  required  by  the  statute  to  make  a  confirmation 
of  a  debt  contracted  by  a  person  when  an  infant,  and  they  need  not 
amount  to  a  direct  promise  to  pay,  but  they  must  import  an  un- 
equivocal recognition  and  confirmation  of  the  previous  engage- 
ment.^* 

26  L.  Ed.  87;  Wells  v.  Seixas  (C.  C.)  24  Fed.  82;  Richardson  r.  Pate,  93  Ind. 
423,  47  Am.  Rep.  374 ;  Green  v.  Green,  69  N.  Y.  553,  25  Am.  Rep.  233 ;  Eagan 
V.  Scully,  29  App.  Div.  617,  51  N.  Y.  Supp.  680,  affirmed  173  N.  Y.  581,  65 
N.  E.  1116;  Shlpp  v.  McKee,  80  Miss.  741,  31  South.  197,  32  South.  281,  92 
Am.  St.  Rep.  616.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  31;  Cent.  Dig.  §§  SJf,  55. 

86  Leacox  v.  Griffith,  76  Iowa,  89,  40  N.  W.  109;  Mehlhop  v.  Rae,  90  Iowa, 
30,  57  N.  W.  650;  Hegler  v.  Faulkner,  153  U.  S.  109,  14  Sup.  Ct.  779,  38  L. 
Ed.  653  (under  Nebraska  statute);  Johnson  v.  Storie,  32  Neb.  610,  49  N.  W. 
371.    See  "Infants,"  Dec.  Dig.  {Key-No.)  §  SI;  Cent.  Dig.  §§  51f,  55. 

87  Ward  V.  Scherer,  96  Va.  318,  31  S.  E.  518 ;  Bird  v.  Swain,  79  Me.  529,  11 
Atl.  421.  In  the  absence  of  such  rati  flea  tion  in  writing,  the  sale  by  an  infant, 
after  coming  of  age,  of  merchandise  bought  by  him  on  credit  during  his 
minority,  does  not  render  him  liable  for  its  purchase  price,  either  in  tort  or 
contract  Lamkin  &  Foster  v.  Le  Doux,  101  Me.  581,  64  Atl.  1048,  8  L.  R.  A. 
(N.  S.)  104     See  "Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §  1S9. 

88  Ward  V.  Scherer,  96  Va.  318,  31  S.  E.  518.  See  "Infants,"  Deo.  Dig.  (Key- 
No.)  S  57;  Cent.  Dig.  §§  136-1^8. 


208  CAPACITY   OF   PARTIES  (Ch.  6 

Where  No  Statutory  Requirement 

In  the  absence  of  such  a  statutory  provision,  ratification  may 
either  be  by  an  express  new  promise,  made  orally  or  in  writing, 
or  it  may  be  implied  from  acts  or  declarations  clearly  showing 
an  intention  to  recognize  the  contract,  and  to  be  bound  by  it. 
The  new  promise,  whether  in  writing  or  oral,  or  evidenced  by  con- 
duct, must  be  clear  and  unequivocal,  and  must  show  an  intention 
to  be  bound." 

A  mere  acknowledgment  of  the  contract,  without  a  promise  to 
be  bound,  express  or  implied,  is  not  sufficient.*"  Where  there  is 
a  new  promise,  it  must  be  made  to  the  other  party  or  his  agent;  *^ 
and  if  it  is  not  absolute,  but  conditional — as,  for  instance,  where 
it  is  a  promise  to  pay  or  otherwise  perform  when  able — the  condi- 
tion must  be  fulfilled  before  any  liability  attaches.*^ 

It  has  frequently  been  held  that  to  render  an  act  or  promise 
binding  as  a  latification  it  must  be  performed  or  made  with  knowl- 
edge that  there  was  in  law  no  liability  on  the  original  contract.*' 
There  are  many  cases,  however,  which  hold  that  knowledge  of  the 
law  is  not  necessary,  or,  rather,  must  be  presumed.** 

There,  need  be  no  fresh  consideration  .for  the  new  promise,  for, 

39  "UTiitney  v.  Dutch,  14  Mass.,  at  page  460.  7  Am.  Dec.  229 ;  Oarrell  v. 
Potter,  23  Jllch.  .379.  And  see  notes  40-51,  infra.  See  "Infants,"  Dec.  Dip. 
(Key-No.)  §  57;  Cent.  Dig.  §§  136-11,8. 

40  THOMPSON  V.  LAY,  4  Pick.  (Mass.)  48,  16  Am.  Dec.  325,  Throckmorton 
Cas.  Contracts,  139 ;  Ford  v.  Phillips,  1  Pick.  (Mass.)  202 ;  Kendrick  y.  Neis^ 
17  Colo.  506,  30  Pac.  24-5 ;  Hale  v.  Gerrish,  S  N.  H.  374.  See  ''Infants,"  Dec. 
Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  1SG-1J,8. 

4iGoodsell  V.  Myers,  3  Wend.  (N.  Y.)  479;  Bigelow  v.  Grannis.  2  Hill  (X. 
Y.)  120.     See  "Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  130-1^8. 

4  2  Everson  v.  Carpenter,  17  Wend.  (N.  Y.)  419;  Kendrick  v.  Neisz,  17  Colo. 
506,  30  Pac.  245;  THOMPSON  v.  LAY,  4  Pick.  (Mass.)  48,  16  Am.  Dec.  325, 
Throckmorton  Cas.  Contracts,  139;  Proctor  v.  Sears,  4  Allen  (Mass.)  95.  See 
"Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  ISG-lJiS. 

43  Harner  v.  Killing,  5  Esp.  103;  Curtin  v.  Patton,  11  Serg.  &  R.  (Pa.)  305; 
Thing  V.  Libbey,  10  Me.  55;  Trader  v.  Ix)we,  45  Md.  1;  Smith  v.  Mayo,  9 
Mass.  62,  0  Am.  Dec.  28;  Ford  v.  Phillips.  1  Pick.  (Mass.)  202;  Reed  v. 
Boshears,  4  Snced  (Tenn.)  118;  Norris  v.  Vance,  3  Rich.  Law  (S.  C.)  164 ;  Bur- 
dett  V.  Williams  (D.  C.)  30  Fed.  697;  Bresee  v.  Stanly,  119  N.  C.  278,  25  S. 
E.  870.  No  ratification,  if  adult  is  ignorant  that  he  was  an  infant  when 
he  made  the  contract.  Ridgeway  v.  Herbert,  150  Mo.  606,  51  S.  W.  1040,  73 
Am.  St.  Rep.  464,  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§ 
136-1. ',8. 

44  Morse  v.  Wheeler,  4  Allen  (Mass.)  570;  Taft  v.  Sergeant,  18  Barb.  (N.  Y.) 
321 ;  Anderson  v.  Soward,  40  Ohio  St.  325,  48  Am.  Rep.  687 ;  American  Mort- 
gage Co.  of  Scotland  v.  Wright,  101  Ala.  658,  14  South.  399;  Clark  v.  Van 
Court,  100  Ind.  113,  .50  Am.  Rep.  774;  Ring  v.  .Tamisou,  00  :Mo.  424;  Bestor 
V,  Hickey,  71  Conn.  181,  41  Atl.  555.  See  "Infants"  Dec.  Dig.  (Key-No.)  §  57;" 
Cent  Dig.  §§  1SG-1J,8, 


§§    105-107,  WHAT    AMOUNTS    TO    RATIFICATION  209 

as  we  have  seen,  this  is  one  of  the  cases  in  which  a  past  consid- 
eration is  sufficient.*" 

Same — Implied  Ratification 

Unless  a  statute  so  requires,  an  express  promise  in  terms  is  not 
necessary  in  order  to  constitute  ratification  of  an  obligation  incur- 
red during-  infancy.  "Where  the  declarations  or  acts  of  the  indi- 
vidual after  becoming  of  age,"  said  the  Vermont  court,  "fairly  and 
justly  lead  to  the  inference  that  he  intended  to  and  did  recognize 
and  adopt  as  binding  an~agreement  executory  on  his  part,  made 
during  infancy,  and  intended  to  pay  the  debt  then  incurred,  we 
think  it  is  sufficient  to  constitute  ratification,  provided  the  declara- 
tions were  freely  and  understandingly  made,  or  the  acts  in  like 
manner  performed,  and  with  knowledge  that  he  was  not  legally 
liable."  *« 

The  courts  go  much  further  than  this,  and  hold  substantially 
that  any  intelligent  conduct  by  a  person,  after  attaining  his  ma- 
jority, inconsistent  with  the  nonexistence  of  a  contract,  executory 
or  executed,  will,  as  a  rule,  amount  to  an  affirmance  of  the  con- 
tract.*^ If,  for  instance,  an  infant  takes  a  lease,  and  after  becoming 
of  age  recognizes  it  by  occupying  under  it,  or  if,  having  given  a 
lease,  he  accepts  rent  after  becoming  of  age,  his  conduct  amounts 
to  a  ratification.*^  So,  also,  a  purchase  of  land  or  chattels  by  an 
infant  is  ratified  if  he  retains  and  uses  the  property  for  an  unrea- 
sonable time  after  attaining  his  majority,  or  if  he  sells  it  to  a  third 
person.,  or  otherwise  disposes  of  it.*®     The  receipt  of,  or  a  suit  to 

4  5  Ante,  p.  174. 

40  Hatch  V.  Hatch's  Estate.  CO  Vt.  IGO,  13  Atl.  791.  And  see  Kendrick  v. 
Neisz,  17  Colo.  506,  30  Pac.  24.'i ;  Baker  v.  Kennett,  54  Mo.  88;  Wheaton  v. 
East,  5  Yerg.  (Tenn.)  41,  26  Am.  Dec.  251;  Emmons  v.  Murray,  16  N.  H.  385; 
Drake  v.  Wise,  36  Iowa,  476;  Hale  v.  Gerrish,  8  N.  H.  374;  Middleton  v. 
Hoge,  5  Bush  (Ky.)  478  (collectin;?  cases) ;  Barlow  v.  Robinson,  174  111.  317,  51 
N.  E.  1045.  See  Ewell,  Lead.  Cas.  173-180.  See  "Infants,"  Dec.  Dig.  (Key- 
2^0.)  §  57;  Cent.  Dig.  §§  ISG-UfS. 

4T  Henry  v.  Root,  33  N.  Y.  526  (collecting  cases).  Where  an  infant  buys 
land,  and  gives  a  mortgage  to  secure  the  purchase  money,  a  sale  and  con- 
veyance of  the  land  after  he  becomes  of  age  is  a  ratification  of  the  mort- 
gage. Uecker  v.  Koehn,  21  Neb.  550.  32  N.  W.  583,  59  Am.  Rep.  849.  And  see 
Callis  V.  Day,  38  Wis.  643.  Acceptance  of  part  of  the  proceeds  of  a  sale  un- 
der a  deed  of  trust  given  while  an  infant.  Darraugh  v.  Blackford,  84  Va. 
509,  5  S.  E.  542.  Taking  releases  of  part  of  premises  mortgaged  during  in- 
fancy, and  acquiescence  for  two  years.  Wilson  v.  Darragh,  55  Hun,  605,  7 
N.  Y.  Supp.  810.  See  "Infants,"  Dec.  Dig.  (/vr?/-.Yo.)  §§  SO,  57;  Cent.  Dig. 
{§  J,l-55,  J3(J-1J,8. 

48  Ashfield  v.  Ashfield,  W.  Jones,  157;  Bjiramour  v.  Yardley,  Plowd.  546. 
See  '•Infants,"  Dec.  Dig.  (/i'rjy-.Yo.)  §§  SO,  57;  Cent.  Dig.  §§  41-55.  136-11,8. 

4*-  lU'ury  v.  Root,  33  N.  Y.  526;  Lawson  v.  Lovejoy,  8  Greenl.  (Me.)  405,  23 

Cla.ekCont.(3d  Ed.) — 14 


210  ,  CAPACITY   OF   PARTIES  (Ch.  6 

recover,  the  purchase  money  of  property  sold  by  him,  or  suit  to 
enforce  any  other  kind  of  contract,  would  amount  to  a  ratification 
of  the  contract/"  Generally  speaking,  the  act  relied  upon  as  a 
ratification  must  show  an  intention  to  affirm  the  contract;  but  the 
decisions  are  not  in  accord  as  to  what  acts  are  sufficient  to  show 
such  an  intention.  Disposing  of  the  property  received  under  the 
contract,  and  the  other  acts  above  mentioned,  would  clearly  show 
such  intention ;  but  where  an  infant  has  executed  a  conveyance, 
a  mere  offer,  after  attaining  his  majority,  to  execute  a  confirm- 
atory deed  if  the  other  party  will  pay  the  balance  of  the  purchase 
money,  which  offer  is  refused,  clearly  could  not  be  regarded  as 
a  ratification  of  the  sale  and  conveyance.''^ 

Mere  silence  or  acquiescence   after  becoming   of  age,   without 

Am.  Dec.  526;  Boyden  v.  Boyden,  9  Mete.  (Mass.)  519;  Robbins  v.  Eaton,  10  N. 
H.  561;  Hubbard  v.  Cummings,  1  Greenl.  (Me.)  11;  Boody  v.  McKeuney,  2.3 
Me.  517;  Ellis  v.  Alford,  64  Miss.  8,  1  South.  155;  Buchanan  v.  Hubbard,  119 
Ind.  187,  21  N.  E.  538;  Cheshire  v.  Barrett,  4  McCord  (S.  O.)  241,  17  Am. 
Dec.  735 ;  Deason  v.  Boyd,  1  Dana  (Ky.)  45 ;  Shropshire  v.  Burns,  46  Ala.  108 ; 
Aldrich  v.  Grimes,  10  N.  H.  194;  Dana  v.  Coombs,  6  Greenl.  (Me.)  89,  19 
Am.  Dec.  194;  Armfield  v.  Tate,  29  N.  C.  258;  Callis  v.  Day,  38  Wis.  643; 
Hilton  V.  Shepherd,  92  Me.  160,  42  Atl.  387.  This  is  expressly  declared  by 
statute  in  some  states.  See  McKamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312.  Re- 
taining property  after  tendering  it  on  disaffirmance,  and  on  the  other's  re- 
fusal to  receive  it,  is  not  a  ratification.  House  v.  Alexander,  105  Ind.  109, 
4  N.  E.  891,  55  Am.  Rep.  189.  And  see  Scott  v.  Scott,  29  S.  C.  414,  7  S.  E.  811. 
The  retention  by  a  person,  after  becoming  of  age,  of  material  furnished  him 
during  his  minority  in  the  construction  of  his  house,  is  not  a  ratification  of 
his  purchase  of  the  material,  for  he  cannot  return  it.  Bloomer  v.  Nolan,  36 
Neb.  51,  53  N.  W.  1039,  38  Am.  St.  Rep.  690.  See  ''Infants,"  Dec.  Dig.  (Key- 
No.)  §§  SO,  57;  Cent.  Dig.  §§  Jtl-55,  136-11,8. 

8  0  Morrill  v,  Aden,  19  Vt.  505;  Ferguson  v.  Bell's  Adm'r,  17  Mo.  347;  Purs- 
ley  V.  Hays,  17  Iowa,  310.  Where  an  infant  takes  a  deed  and  gives  back  a 
purchase-money  mortgage,  and  the  property  is  sold  under  the  mortgage,  the 
infant  after  his  majority,  by  bringing  ejectment  against  the  purchaser,  not 
only  affirms  the  deed,  but  the  mortgage.  Kennedy  v.  Baker,  159  Pa.  146,  28 
Atl.  252.  See  "Infants,"  Deo.  Dig.  {Key-No.)  §§  SO,  57;  Cent.  Dig.  §§  41-55, 
136-14S. 

61  Craig  V.  Van  Bebber,  100  Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep.  569. 
When  a  note  by  an  infant  remains  in  part  unpaid,  mere  acknowledgment  of 
the  debt,  or  payment  of  interest  or  part  of  principal,  after  becoming  of  age. 
is  not  a  binding  affirmance.  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245. 
Contra,  American  Mortgage  Co.  of  Scotland  v.  Wright,  101  Ala.  658,  14  South. 
399.  So,  where  land  has  been  purchased,  and  installment  notes  given  by  an 
infant,  payment  of  some  after  becoming  of  age  is  not  of  itself  a  ratification. 
Rapid  Transit  Land  Co.  v.  Sanford  (Tex.  Civ.  App.)  24  S.  W.  587.  The  re- 
cital in  a  mortgage  executed  after  attaining  majority,  that  it  is  subject  to 
a  mortgage  executed  during  infancy,  is  a  ratification  of  tJie  prior  mortgage. 
Ward  V.  Anderson,  111  N.  C.  115,  15  S.  E.  933.  See  "Infants,"  Dec.  Dig. 
{Key-No.)  §§  SO,  57 :     Cent.  Dig.  §§  U-55,  136-1^8. 


§    108)  WHAT    AMOUNTS    TO    DISAFFIEMANCB  211 

more,  does  not,  as  a  rule,  amount  to  a  ratification."  It  is  other- 
wise where  the  contract  is  one  which  requires  disaffirmance,  and 
there  is  a  faikire  to  disaffirm  for  an  unreasonable  time,  under 
such  circumstances  as  to  lead  others  to  act  to  their  prejudice.^* 


SAME— WHAT   AMOUNTS    TO    DISAFFIRMANCE 

108.  A  contract  is  disaffirmed  by  any  conduct  which  is  inconsist- 
ent with  the  existence  of  the  contract,  and  shows  an 
intention  not  to  be  bound  by  it. 

Disaffirmance,  like  ratification,  may  be  implied,  and  it  will 
generally  be  implied  from  conduct  clearly  inconsistent  with  the 
existence  of  the  contract.^*  Where,  for  instance,  a  person  who 
has  sold  and  conveyed  or  mortgaged  land  or  goods  while  an  infant, 
sells,  leases,  or  mortgages  the  same  to  another  after  becoming  of 
age,  this  is  a  disaffirmance  of  his  contract.^"  An  action  by  a  per- 
son, after  becoming  of  age,  to  recover  goods  or  land  sold  by  him 

»2  Durfee  v.  Abbott,  61  Mich.  471,  68  N.  W.  521 ;  Irvine  v.  Irvine,  9  Wall. 
618,  19  L.  Ed.  800;  Tyler  v.  Fleming,  68  Mich.  ISo,  35  N.  W.  902,  13  Am.  St. 
Rep.  336 ;  Hill  v.  Nelms,  86  Ala.  442,  5  South.  79S.  But  see  Delano  v.  Blake. 
11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617;  ante,  p,  206.  See  "Infants;'  Dec. 
Dig.  {Key-No.)  §  57;   Cent.  Dig.  §§  136-l^S. 

esLangdon  v.  Clayson,  75  Mich.  204,  42  N.  W.  805;  Lacy  v.  Pixler,  120 
Mo.  383,  25  S.  W.  206 ;  Dolph  v.  Hand.  156  ^a.  91,  27  Atl.  114,  36  Am.  St. 
Rep.  25;  Wheaton  v.  East,  5  Yerg.  (Tenu.)  41,  62,  26  Am.  Dec.  258;  Hart- 
man  v.  Kendall,  4  Ind.  403 ;  Wallace's  Lessee  v.  Lewis.  4  Har.  (Del.)  80.  See 
"Infants,"  Dec.  Dig.   (Key-No.)  §  57;    Cent.  Dig.  §§  186-11,8. 

B4Pyne  V.  Wood,  145  Mass.  558,  14  N.  E.  775;  Vent  v.  Osgood,  19  Pick. 
(Mass.)  572 ;  Whitmarsh  v.  Hall,  3  Denio  (N.  Y.)  375 ;  Dallas  v.  Hollingsworth, 
3  Ind.  537.  See  "Infants;'  Dec.  Dig.  (Key-No.)  §§  31,  58;  Cent.  Dig.  §§  41-63, 
149-160. 

6  5  Tucker  v.  Moreland,  10  Pet  58,  9  L.  Ed.  345;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  320,  76  Am.  Doc.  209;  Vallaudingham  v.  Johnson,  85 
Ky.  288,  3  S.  W.  173  ;  Corbett  v.  Spencer,  63  Mich.  731,  30  N.  W.  385 ;  Haynes  v. 
Bennett,  53  Mich.  15,  18  N.  W.  539 ;  Dawson  v.  Helmes,  30  Minn.  107,  14  N. 
W.  402;  Chapin  v.  Shafer,  49  N.  Y.  407;  Peterson  v.  Laik,  24  Mo.  541,  09 
Am.  Dec.  441 ;  Cresinger  v.  Welch's  Lessee,  15  Ohio,  156,  45  Am.  Dec.  505 ; 
Pitcher  v.  Layrock,  7  Ind.  398;  McGan  v.  Mar.shall,  7  Humph.  (Tenn.)  121; 
Ridgeway  v.  Herbert,  150  Mo.  606,  51  S.  W.  1040,  73  Am.  St.  Rep.  464.  In 
some  jurisdictions  a  person  is  not  allowed  to  convey  land  which  is  in  the 
adverse  possession  of  another.  Here,  therefore,  an  infant  cannot  avoid  his 
deed  of  land  by  a  second  deed,  executed  while  his  first  grantee  or  another 
Is  in  the  adverse  pos.session  of  the  land.  He  must  first  make  an  enti-y-  Har- 
rison V.  Adcock,  8  Ca.  68.  See  Bool  v.  Mix,  17  Wend.  (N.  Y.)  133,  31  Am. 
Dec,  285.  Bee  "Infants,"  Dec.  Dig.  (Key-No.)  §§  31,  5S;  C&nt.  Dig.  §§  41-G3, 
149-160, 


212  CAPACITY   OF   PARTIES  '  (Ch.  fl 

during  his  minority,  is  a  disaffirmance  of  the  sale;""  and  a  con- 
tract is  disaffirmed  by  merely  pleading  infancy  when  suit  is 
brought  against  him  to  enforce  it. 

At  one  time  disaffirmance  of  a  deed  of  land  was  required  to  be 
by  some  act  as  high  and  solemn  as  the  deed;  but,  according  to 
the  weight  of  authority,  this  solemnity  is  no  longer  necessary, 
and  a  deed  may  be  effectually  avoided  by  any  acts  or  declarations 
disclosing  an  unequivocal  intent  to  repudiate  it.'' 


SAME— EXTENT  OF  RATIFICATION  OR  DISAFFIRM- 
ANCE 

109.  The  ratification  or  disaffirmance  must  be  in  toto.     The  con- 
tract cannot  be  ratified  or  disaffirmed  in  part  only. 

The  disaffirmance  or  ratification  must  go  to  the  whole  contract 
An  infant  cannot  ratify  a  part  which  he  deems  for  his  benefit, 
and  repudiate  the  rest.^^  He  cannot,  for  instance,  ratify  a  lease 
to  himself,  and  avoid  a  covenant  in  it  to  pay  rent;  nor  can  he 
hold  lands  conveyed  to  him  in  exchange,  and  avoid  the  transfer 
of  those  with  which  he  parted;®"  nor  can  he  hold  land  conveyed 
to  him,  and  repudiate  a  mortgage  given  at  the  time  as  part  of 
the  same  transaction  to  secure  the  purchase  money.®*^ 

56  Clark  V.  Tate,  7  Mont  171,  14  Tac.  7C1 ;  Ci-aig  v.  Van  Bebber,  100  Mo. 
oM,  13  S.  W.  90G.  18  Am.  St  Rep.  .569;  Pbilips  v.  Green,  3  A.  K.  Marsb.  (Ky.) 
7,  13  Am.  Dec.  124;  Stotts  v.  Leonhard,  40  Mo.  App.  336;  Scott  v.  Buchanan, 
11  Humph.  (Tenn.)  469 ;  Hughes'  v.  Watson,  10'  Ohio,  134.  Where,  however, 
the  action  is  based  on  the  assumption  that  defendant  Is  wrongfully  in  posses- 
sion, as  in  the  case  of  ejectment,  the  weight  of  authority  seems  to  require 
that  there  shall  hare  been  some  previous  act  of  disaffirmance  on  the  part  of 
the  infant,  for  until  disaffirmance  defendant  is  rightfully  in  possession.  See 
Law  V.  Long,  41  lud.  586;  -McClanahan  v.  Williams,  136  Ind.  30,  35  N.  E. 
897;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  135,  31  Am.  Dec.  285;  Clawson  v.  Doe, 
5  Blackf.  (Ind.)  300;  Wallace's  Lessee  v.  Lewis,  4  Har.  (Del.)  75.  See  "7>i- 
fants,"  Dec.  Dig.  (Key-No.)  §§  31,  57;   Cent.  Dig.  §§  U-63,  1J,9-1G0. 

67  McCarty  v.  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136.  And  see 
note  55,  supra.     -See  '•Infants"  Dec.  Dig.  (Key-yo.)  §  31;   Cent.  Dig.  §§  4I-6S. 

5  8  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  103;  Bigelow  v,  Kinney, 
3  Vt  353,  21  Am.  Dec.  589;  Dowry  v.  Drake's  Heirs,  1  Dana  (Ky.)  46.  Cf. 
O'Rourke  v.  Insurance  Co.,  23  R.  I.  457,  50  Atl.  8.34,  57  L.  R.  A.  496,  91  Am. 
St  Rep.  643.  -See  "Infants,"  Dec.  Dig.  (Key-'No.)  S§  30,  31;  Cent.  Dig.  §§ 
1,1-63. 

39  Buchanan  v.  Hubbard,  119  Ind.  187,  21  N.  E.  538.  -See  "Infants,"  Dec. 
Dig.  (Key-No.)  §§  30,  31;    Cent.  Dig.  §§  J,l-63. 

eo  Hubbard  v.  Cummings,  1  Greenl.  (]Me.)  11;  Uecker  v.  Koehn,  21  Neb. 
559,  32  N.  W.  583,  59  Am.  Rep.  849;    Bigelow  v.  Kinney,  3  Vt  353,  21  Am 


II    110-111)  RETURN    OF    CONsfoERATION  213 

As  a  rule,  a  person  cannot  retain  property  purchased  by  hira 
during  infancy,  and  repudiate  the  contract  under  which  he  receiv- 
ed it ;  nor  can  he  disaffirm  a  sale  by  him,  and  retain  the  consid- 
eration received ;  but  as  to  this  there  is  much  conflict,  and  we 
must  go  into  the  subject  at  some  length. 


SAME— RETURN  OF  CONSIDERATION 

110.  An  infant  may  disaffirm  his  executory  contract  without  first 

returning  the  consideration  he  has  received;  but  after 
disaffirmance  he  must  return  the  consideration,  if  he  has  it. 

111.  If  the  contract  has  been  executed  by  him,  he  cannot  avoid  it, 

and  recover  what  he  has  paid,  or  for  what  he  has  done, 
without  returning  the  consideration  if  he  has  it;  but, 
by  the  weight  of  authority,  if  he  has  squandered  or  other- 
wise disposed  of  it  during  his  minority,  it  is  otherwise. 

EXCEPTIONS— (a)  Though  the  infant  has  the  consideration, 
he  may  effectually  disaffirm  his  executed  contract  without 
its  return  as  a  condition  precedent,  if  he  does  not  affirm- 
atively seek  relief;  as,  for  instance,  where  he  disaffirms 
his  conveyance  of  land  by  conveying  to  another. 

(b)  Some  courts  hold  that  an  infant  cannot  recover  what  he  has 
paid,  or  for  what  he  has  done,  under  a  contract  by  which 
he  has  received  a  substantial  benefit,  unless  he  can  and 
does  place  the  other  party  in  statu  quo.  This  probably 
does  not  apply  to  his  conveyances  of  land. 

As  we  have  just  stated,  when  a  person  avoids  a  contract  made 
by  him  during  his  minority,  he  must,  as  a  rule,  return  the  con- 
sideration he  has  received.''^  As  to  whether  or  not  he  must  do 
so  as  a  condition  precedent  to  disaffirmance,  or  whether  the  other 
partv  musT~be  lefr'to  his  action  to  recover  the  consideration  after 
disaffirmance,  and  as  to  whether  the  consideration  must  be  returned 

Dec.  589;  Henth  v.  West,  28  N.  H.  mS;  Youn.^  v.  McKee,  13  Mirli.  556; 
Skinner  v.  Maxwell,  66  N.  C.  4.");  Cogley  v.  Cnshman,  16  Minn.  402  (Gil. 
3.".4) ;  Callis  v.  Day,  38  Wis.  643;  Keady  v.  Pinkbam,  181  Mass.  351,  63  N.  E. 
887.  Cf.  Nottingham,  etc.,  Soc.  v.  Thurston,  19  L.  T.  R.  54  (ll.  L.).  See 
'•Infants,"  Dec.  Dig.  {Key-^'o.)  B  SO,  SI;    Cent.  Dig.  §§  .'il-GH. 

61  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Bigelow  v.  Khinoy. 
3  Vt.  353.  21  Am.  Dee.  589;  Wilhelm  v.  Ilardman,  13  Md.  140;  Mustard  v. 
Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Combs  v.  Hawes  (Cal.) 
8  Pac.  597  (statutory);  Kitchen  v.  Lee,  11  Pai;?e  (N.  Y.)  107,  42  Am.  Dec. 
101;  liartlett  v.  Cowles,  15  Gray  (Mass.)  44G.  tice  "Infants,"  Dec.  Dig.  {Key- 
No.)  §§  31,  58;    Cent.  Dig.  §§  59,  151. 


214  CAPACITY    OF   PARTIES  (Ch.  6^^ 

where  it  has  been  wasted  or  otherwise  disposed  of,  the  decisions 
are  conflicting. 

(a)  Where  the  contract  is  executory  on  the  part  of  the  infant, 
and  he  has  not  ratified  it  by  his  conduct,  as  explained  above,®^ 
it  cannot,  according  to  the  weight  of  authority,  be  enforced  against 
him,  even  though  he  retains  the  consideration  received  by  him 
in  kind.  He  need  not  return  the  consideration  as  a  condition 
precedent  to  repudiating  the  contract  and  pleading  his  infancy 
in  an  action  brought  against  him  to  enforce  it.^^  When  he  repu- 
diates his  contract,  however,  he  no  longer  has  any  right  to  the 
consideration  he  has  received,  and  at  least,  if  he  has  it,  the  other 
party  may  maintain  an  action  to  recover  it.®*  According  to  the 
weight  of  authority,  if  he  has  disposed  of  the  consideration  so 
that  he  cannot  return  it  in  kind,  he  cannot  be  held  liable  for  it. 
The  adult  is  remediless.®^  It  must  be  remembered  that  retaining 
the  consideration  may  amount  to  a  ratification. 

(b)  Where  the  contract  is  executed  on  the  part  of  the  infant, 
and  he  has  the  consideration  received  by  him  in  kind,  many  cases 
hold  that  he  cannot  repudiate  the  contract,  and  recover  what  he 
has  parted  with,  unless  he  returns,  or  offers  to  return,  the  con- 
sideration.®' Many  cases,  on  the  other  hand,  go  to  the  extent 
of  saying  without  qualification  that  the  return  of  the  consideration 
in  such  a  case  is  not  a  condition  precedent  to  the  right  to  disaffirm 
and  recover  what  has  been  parted  with;  although,  if  the  infant 
still  retains  the  consideration,  the  adult  may  reclaim  it,  or,  upon 

62  Ante,  p.  209. 

6  3  Craighead  v.  Wells,  21  Mo.  409;  Price  v.  Furman,  27  Vt.  268,  65  Am. 
Dec.  194.     See,  also,  Nichols  &  Shepard  Co.  v.  Snyder,  78  Minn.  502,  81  N.  W. 

516.  See  "Infants,"  Dec.  Dig.  (Key-yo.)  §§  31,  58;   Cent.  Dig.  §§  59,  151. 

64  Badger  v.  Phinuey,  15  Mass.  359,  8  Am.  Dec.  105 ;  Mustard  v.  Wohl- 
ford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209.  Where  an  infant  bought 
of  another  infant,  and  paid  the  price,  and  after  the  seller  had  spent  the 
money  the  buyer  disaffirmed  the  contract,  and  brought  action  to  recover  the 
money  paid  both  in  contract  and  in  tort,  it  was  held  that  the  defendant's  plea 
of  infancy  was  a  defense  to  the  count  in  contract,  and  that  there  was  no 
dealing  with  the  money  by  the  defendant  which  could  constitute  conversion. 
Drude  v.  Curtis,  183  Mass.  317,  67  X.  E.  317,  62  L.  R.  A.  755.  See  "Infants," 
Dec.  Dig.  (Key-^'o.)  §§  31,  5S;    Cent.  Dig.  §§  50,  151. 

65  See  Brawner  v.  Franklin,  4  Gill  (Md.)  470;    Boody  v.  McKenney,  23  Me. 

517,  525.    And  see  post,  p.  215.     See  "Infants,"  Dec.  Dig.  (Key-No.)  §§  30,  57; 
Cent.  Dig.  §§  41-63,  136-11,8. 

66  See  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  LEMMON  v.  BEE- 
MAN,  45  Ohio  St  505,  15  N.  E.  476,  Throckmorton  Cas.  Contracts,  140 ;  Carr 
V.  Clough,  26  N.  H.  280,  59  Am.  Dec.  345;  Robinson  v.  Weeks,  56  Me.  102; 
Johnson  v.  Ins.  Co.,  56  Minn.  365,  57  N.  W.  934,  26  L.  R.  A.  187,  45  Am.  St 
Rep.  473;  Lane  v.  Iron  Co.,  101  Tenn.  581,  48  S.  W.  1094;  Bell  v.  Burk- 
halter   (Ala.)   57  South.  460.     See,  also,  cases  cited  infra,  note  74.     Format 


§§    110-111)  EETURN    OF   CONSIDERATION  215 

demand  and  refusal,  recover  in  trover.'^  That  return  of  the 
consideration  is  not  a  condition  to  disaffirmance,  where  the 
disaffirmance  by  the  infant  is  by  dealing  with  the  property 
he  has  parted  with  as  his  own,  and  where  he  is  not  seeking 
the  aid  of  a  court  to  recover  it,  is  everywhere  conceded ;  as  where, 
having  sold  land  and  received  the  purchase  money,  he  disaffirms 
by  conveying  the  land  to  another.  The  latter  deed  is  effectual 
though  he  has  not  returned  the  consideration  for  his  prior  deed.®^ 
(c)  According  to  the  weight  of  authority,  an  infant,  on  attain- 
ing his  majority,  may  disaffirm  his  contract,  whether  it  is  execu- 
tory or  executed,  and  in  the  latter  case  may  recover  back  what 
he  has  parted  with  or  for  what  he  has  done,  without  returning 
or  offering  to  return  the  consideration  received  by  him,  if,  during 
his  minority,  he  has  squandered  or  otherwise  disposed  of  it  so 
that  he  cannot  return  it.®*    The  rule  is  also  applied  to  cases  where 

tender  is  not  required  as  a  condition  precedent  to  a  suit  by  him.  but  restora- 
tion must  be  made  on  tlie  trial  as  a  condition  of  tlie  judgment  Starr  v. 
Watldns,  78  Neb.  610,  111  N.  W.  3G3 ;  Jones  v.  Valentine's  School  of  Teleg- 
raphy, 122  Wis.  318,  99  N.  W.  1043.  Money  borrowed  by  an  infant  mort- 
gagor and  used  to  pay  off  prior  liens  and  for  permanent  improvements  will 
be  regarded  in  equity  as  in  his  hands;  and  in  a  suit  to  foreclose  the  mort- 
gage after  disaffirmance,  relief  may  be  given  by  a  sale  of  the  property  and 
the  application  of  the  proceeds  in  such  manner  as  to  place  the  mortgagee  in 
statu  quo,  provided  this  can  be  done  without  depriving  the  mortgagor  of  an 
interest  equivalent  to  that  which  he  had  in  the  property  at  the  time  the  mort- 
gage was  executed.  MacGreal  v.  Taylor,  1G7  U.  S.  688,  17  Sup.  Ct.  961,  42 
L.  Ed.  326.  Cf.  Nottingham,  etc..  Society  v.  Thurston,  19  L.  T.  R.  54  (11.  of 
L.)  affirming  s.  c.  [1902]  1  Ch.  1  (C.  A.)  reversing  s.  c.  [1901]  1  Ch.  88.  See 
"Infants,"  Dec.  Dig.  (Key-No.)  §§  31,  5S;    Cent.  Dig.  §§  59,  151. 

87  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Tucker  v.  More- 
land,  10  Pet.  58,  73,  9  L.  Ed.  345;  Shaw  v.  Boyd,  5  Serg.  &  R.  (Pa.)  309,  9  Am. 
Dec.  368;  McCarty  v.  Iron  Co.,  92  Ala.  463,  S  South.  417,  12  L.  R.  A.  136: 
Shirk  V.  Shultz,  113  Ind.  571,  15  N.  E.  12 ;  Drude  v.  Curtis,  183  Mass.  317, 
67  N.  E.  317,  G2  L.  R.  A.  755.  See  ''Infants,"  Dec.  Dig.  (Key-No.)  §§  31,  58; 
Cent.  Dig.  §§  59,  157. 

68  Dawson  v.  Helmes,  30  Minn.  107,  14  N.  W.  462.  iSee  "Infants,"  Dec.  Dig. 
(Key-No.)  §  31;   Cent.  Dig.  §  59. 

69  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Price  v.  Furman, 
27  Vt.  268,  65  Am.  Dec.  194 ;  Boody  v.  McKenney,  23  Me.  517 ;  LEMjNION  v. 
BEEMAN,  45  Ohio  St.  505,  15  N.  E.  476,  Throckmorton  Cas.  Contracts,  140; 
Reynolds  v.  McCurry,  100  111.  356;  Mustard  v.  Wohlford's  Heirs,  15  Grat 
(Va.)  329,  76  Am.  Dec.  209;  Miller  v.  Smith,  20  Minn.  24S,  2  N.  W.  942,  37 
Am.  Rep.  407;  Green  v.  Green,  09  N.  Y.  553,  25  Am.  Rep.  233;  Mordecai  v. 
Pearl,  03  Hun,  553,  18  N.  Y.  Supp.  543;  Petrie  v.  Williams,  t>8  Hun,  589,  23 
N.  Y.  Supp.  237;  Brandon  v.  Brown,  106  111.  519;  Craig  v.  Van  Bebber,  100 
Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep.  569 ;  Lacy  v.  Pixlor,  120  Mo.  3S3,  25 
S.  W.  206;  Harvey  v.  Briggs,  68  Miss.  60,  8  South.  274,  10  L.  R.  A.  62;  Engle- 
bert  V.  Troxell,  40  Neb.  195,  58  N.  W.  852,  26  L.  R.  A.  177,  42  Am.  St.  Rep. 
665 ;  Manning  v.  Johnson,  26  Ala.  446,  62  Am.  DeC.  732 ;    Ridgeway  v.  Herbert, 


216  CAPACITY    OF   PARTIES  (Ch.  & 

the  consideration  is  of  such  a  nature  that  it  cannot  be  returned, 
as,  for  example,  instruction,  or  personal  services, ^°  or  insurance 
on  one's  life/^  He  is  not  bound  to  return  an  equivalent."  Some 
of  the  courts  extend  this  rule  to  cases  in  which  the  infant  was 
even  benefited  by  disposing-  of  the  consideration."  The  principle 
on  which  this  rule  is  based  is  that  the  privilege  of  the  infant  to 
avoid  his  contracts  is  intended  to  protect  him  against  the  improvi- 
dence which  is  incident  to  his  immaturity,  and  that  to  require 
him  to  return  the  consideration  received  and  squandered  or  other- 
wise disposed  of  during  his  minority  would  be  to  withdraw  this 
protection,  and  frustrate  the  object  of  the  law.  This  rule  has 
been  applied,  not  only  where  the  contract  was  a  sale-  and  con- 
veyance of  land  by  the  infant,  but  to  sales  of  personalty  and  other 
contracts  as  well. 

(d)  Many  courts,  on  the  other  hand,  apply  the  principle  that 
the  privilege  of  an  infant  is  intended  as  a  shield,  and  not  as  a 
sword — or,  in  other  words,  as  a  protection  to  the  infant,  and  not 
as  an  instrument  of  fraud  and  injustice  to  others — hold,  or  have 
held,  that  an  infant  cannot  avoid  his  executed  contracts,  whereby 
he  has  benefited,  and  recover  what  he  has  parted  with,  or  for 
what  he  has  done,  unless  he  can  and  does  restore  the  consideration 
he  has  received ;  and  that  it  is  immaterial  that  the  consideration 
has  been  disposed  of  by  him,  or  for  any  other  reason  cannot  be 
returned.  In  other  words,  they  hold  that  an  infant  who  receives 
a  substantial   consideration   for   his  executed  contract   cannot,   on 

ir.O  Mo.  G06,  51  S.  W.  10-10,  73  Am.  St.  Rep.  404;  MacGreal  v.  Taylor,  167 
U.  S.  088,  17  Sup.  Ct  901,  42  L.  Ed.  326;  Bullock  v.  Snrowls,  93  Tex.  18S. 
54  S.  W.  001,  47  L.  R.  A.  320.  77  Am.  St  Rep.  849;  White  v.  Cotton  Waste 
Corp.,  178  Mass.  20,  59  N.  E.  642;  Gillis  v.  Goodwin,  ISO  Mass.  140,  61  N.  E. 
813,  91  Am.  St.  Rep.  205 ;  Shipley  v.  Smith,  102  Ind.  520,  70  N.  E.  803 ;  Lake 
V.  Perry,  05  Miss.  550,  49  South.  509.  See  "Infants,"  Dec.  Dig.  (Key-No.) 
§§  SI,  5S;    Cent.  Dig.  §§  59,  157. 

7  0  International  Text-Book  Co.  v.  Doran,  80  Conn.  307,  68  Atl.  255.  See 
''Infants,''  Dec.  Dig.  (Key-No.)  §§  SI,  5S;    Cent.  Dig.   §§  59,  151. 

7  1  Simpson  v.  Prudential  Ins.  Co.,  184  Mass.  348,  68  N.  E.  673,  63  L.  R.  A. 
741,  100  Am.  St  Rep.  560.  See  ''Infants,"  Dec.  Dig.  (Key-No.)  §§  SI,  58;  Cent. 
Dig.  §§  59,  151. 

7  2  Simpson  v.  Prudential  Ins.  Co.,  supra;  Englebert  v.  Troxell,  40  Neb.  105. 
68  N.  W.  852,  20  L.  R.  A.  177,  and  note,  42  Am.  St.  Rep.  665.  See  "Infants," 
Dec.  Dig.  (Key-No.)  §§  31,  58;  .Cent.  Dig.  §§  59,  151. 

T3  A  minor  who  contracts  with  his  employer  that  the  price  of  articles,  not 
necessaries,  purchased  by  him  from  his  employer,  shall  be  deducted  from  his 
wages,  may,  on  becoming  of  age,  repudiate  his  contract,  and  recover  his  wages 
without  deduction;  and  this,  even  though  he  may  have  disposed  of  the  ar- 
ticles to  his  benefit  Morse  v.  Ely,  154  Mass.  458,  28  N.  E.  577,  26  Am.  St 
Rep.  2(S.  And  see  Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345.  See  "Infants,"- 
Dec.  Dig.  (Key-No.)  §§  31,  58;    Cent.  Dig.  §§  59,  151. 


§§    110-111)  RETURN    OF    CONSIDERATION  217 

attaining-  his  majority,  avoid  the  contract,  and  recover  what  he 
has  parted  with,  unless  he  can  and  does  place  the  other  party  in 
statu  quo.'^* 

So  it  has  been  held  that  the  executed  contract  of  an  infant 
for  the  performance  qf  personal  services  by  him  may  not  be  dis- 
affirmed if  not  so  unreasonable  as  to  be  evidence  of  fraud  or 
undue  advantage  in  its  procurement.^*  This  exception  to  the 
general  rule,  is  made  for  the  benefit  and  protection  of  the  infant. 
As  said  in  a  Michigan  case:^'  "Should  the  law  recognize  the 
right  of  repudiation  in  such  cases,  no  man  could  furnish  an  infant 
with  the  necessaries  of  life  in  compensation  for  his  services  with- 
'out  the  risk  of  a  lawsuit;  and  the  minor,  though  able  and  willing 
to  earn  his  support,  would  often  be  deprived  of  the  opportunity, 
and  driven  perhaps  to  vagrancy  and  crime." 

And  in  some  states  the  right  of  an  infant  to  disaffirm  a  contract 
made  by  him  when  over  a  certain  age  is,  by  statute,  made  de- 
pendent upon  his  restoring  the  consideration  or  paying  its  equiva- 
lent, with  interest.'^ ^ 

T4  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St  Rep.  370;  Wilhelm  v. 
Hardman,  13  Md.  140 ;  Holden  v.  Pike,  14  Vt.  405.  30  Am.  Dec.  228 ;  Woraack 
V.  Womack,  8  Tex.  397,  417,  58  Am.  Dec.  119 ;  Bailey  v.  Bamberger,  11  B.  Mon. 
(Ky.)  113.  The  right  to  avoid  is  conditional  on  his  restoring  what  he  received 
in  specie,  or,  if  he  cannot,  on  his  accounting  for  its  value.  Heath  v.  Stevens, 
48  N.  H.  251 ;  Hall  v.  Butterfield,  59  N.  H.  354,  47  Am.  Rep.  209 ;  Bartlett  v. 
Bailey,  59  N.  H.  408 ;  Riley  v.  Mallory,  33  Conn.  201.  In  England  the  right 
to  avoid  an  executed  sale  and  recover  back  the  price  is  denied.  Holmes  v. 
Blogg.  8  Taunt.  508 ;  Ex  parte  Taylor,  8  De  G.  M.  &  G.  258.  See,  also,  Wil- 
liams V.  Pasquali,  Peake,  Add.  Cas.  197;  Valentin!  v.  Canali,  24  Q.  B.  D.  166. 
Where  the  personal  contract  of  an  infant  is  fair  and  reasonable,  and  free 
from  fraud  or  undue  influence,  and  has  been  wholly  or  partly  performed  on 
both  sides,  so  that  the  Infant  has  enjoyed  the  benefits  of  it,  but  has  parted 
with  what  he  has  received,  or  the  benefits  are  of  such  a  nature  that  he  can- 
not restore  them,  he  cannot  recover  back  what  he  has  paid.  Johnson  v.  In- 
surance Co.,  56  Minn.  365,  57  N.  W.  934,  50  N.  W.  992,  26  L.  R.  A.  187,  45 
Am.  St.  Rep.  473;  Alt  v.  Graff,  65  Minn.  191,  68  N.  W.  9.  See.  also.  Rice  v. 
Butler,  160  N.  Y.  578,  55  N.  E.  275,  47  L.  R.  A.  303,  73  Am.  St.  Rep.  703.  Cf. 
Gilli's  V.  Goodwin,  180  Mass.  140,  61  N.  E.  813,  91  Am.  St.  Rep.  265.  See  "In- 
fants," Dec.  Dig.  (Key-No.)  §§  SI,  5S;  Cent.  Dig.  §§  59,  157. 

7  5  Squier  v.  Hydliff,  9  Mich.  274;  Spicer  v.  Earl,  41  Mich.  191,  1  N.  W.  923. 
32  Am.  Rep.  152;  Robinson  v.  Van  Vleet,  91  Ark.  262,  121  S.  W.  288;  Ping 
Min.  &  Mill.  Co.  v.  Grant,  68  Kan.  732,  75  Pac.  1044.  See  "Infants,"  Dec.  Dig. 
(Key-No.)  §  49;   Cent.  Dig.  §§  112,  US,  159. 

76  Squier  v.  Hydliff,  supra,  per  Christiancy,  J.  See  "Infants,"  Dec.  Dig. 
(Key-No.)  §  1,9;   Cent.  Dig.  §§  112,  US,  159. 

77  Age  18.  Spencer  v.  Collins,  156  Cal.  298,  104  Pac.  320,  20  Ann.  Cas.  49; 
Luce  v.  Jestrab,  12  N.  D.  548,  97  N.  W.  848;  Ilelland  v.  Colton  State  Bank,  20 
S.  D.  325,  106  N.  W.  00,  holding,  however,  that  a  contract  of  suretyship  may  be 
avoided  by  mere  disadirmance,  since  the  infant  can  derive  no  advantage  from 
it.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §§  SI,  58;  Cent.  Dig.  §§  5.9,  157. 


218  CAPACITY   OP  PARTIES  (Ch.  6 

SAME— EFFECT    OF    RATIFICATION    AND    DISAFFIRM- 
ANCE 

112.  Ratification  renders  the  contract  absolutely  binding  ab  initio. 

» 

113.  Disaffirmance  renders  the  contract  absolutely  void  ab  initio, 

and  the  rights  of  the  parties  are  determined  as  if  there 
had  never  been  a  contract  between  them. 

114.  Third  parties,  therefore,  acquire  no  rights  under  an  avoided 

contract. 

Ratification  » 

The  effect  of  a  ratification,  whether  it  is  in  express  words  or  im- 
plied from  conduct  is  to  render  the  contract  binding  ab  initio.''* 
The  new  promise  is  not  a  new  contract,  but  simply  a  ratification  of 
the  original  contract;  and  a  suit  if  brought  must  be  on  the  orig- 
inal contract,  and  not  on  the  new  promise.  The  ratification  cannot 
afterwards  be  retracted  and  the  contract  disaffirmed.'^" 

Disaffirmance 

So  disaffirmance  of  a  contract  relates  back  to  the  date  of  the 
contract,  and  renders  it  void  on  both  sides  ab  initio  ;®°  and  it  fol- 
lows that  the  rights  of  the  parties  must  be  determined  as  if  there 
never  had  been  any  contract.  One,  therefore,  who  has  occupied 
land  under  a  deed  by  an  infant  which  is  avoided  by  him  on  becom- 
ing of  age  is  liable  for  rents  during  the  time  of  his  occupation,  just 
as  if  there  has  been  no  deed.*^  If  the  infant's  vendee  has  sold  the 
property  to  a  third  person,  the  latter  occupies  no  better  position 
than  the  vehdee,  and  the  property  may  be  recovered  from  him  even 

T8  Ward  V.  Anderson,  111  N.  C.  115,  15  S.  E.  933;  Palmer  v.  Miller,  25  Barb. 
(N.  Y.)  399;  Minock  v.  Shortridge,  21  Mich.  316;  Hall  v.  Jones,  21  Md.  439. 
See  "Infants"  Dec.  Dig.  (Eey-yo.)  §§  SO,  57;  Cent.  Dig.  §§  J,S,  llfl. 

79  Luce  V.  Jestrab,  12  N.  D.  548,  97  N.  W.  848;  Hastings  v.  Dollarhide,  24, 
Cal.  195.  So,  where  a  contract  has  been  in  part  affirmed  by  a  new  arrange- 
ment and  promise,  the  affirmance  is  not  avoided  by  the  fact  that  because  of 
a  subsequent  disagreement  the  arrangement  is  not  carried  out.  Houlton  v. 
Manteuffel,  51  Minn.  185,  53  N.  W.  541.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §§ 
30,  57;   Cent.  Dig.  §§  48,  lJt7. 

80  RICE  V.  BOYER,  108  Ind.  472.  9  N.  E.  420,  58  Am.  Rep.  53,  Throckmorton 
Cas.  Contracts,  143;  Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am. 
Dec.  209 ;  French  v.  McAndrew,  61  Miss.  187 ;  Boyden  v.  Boyden,  9  Mete. 
(Mass.)  519 ;  Hoyt  v.  Wilkinson,  57  Vt  404 ;  Mette  v.  Feltgen  (111.)  27  N.  E. 
911 ;  Id.,  148  111.  357,  30  N.  E.  81 ;  Derocher  v.  Continental  Mills,  58  Me.  217, 
4  Am.  Rep.  286;  Vent  v.  Osgood,  19  Pick.  (Mass.)  572.  See  "Infants,"  Dec. 
Dig.  (Key-No.)  §§  SI,  58;   Cent.  Dig.  §§  62,  15S,  159. 

81  French  v.  McAndrew,  61  Miss.  1S7.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §§ 
SI,  58;   Cent.  Dig.  §§  62,  158,  159. 


§§    112-114)      EFFECT   OF   RATIFICATION    AND    DISAFFIKMANCE  2l9 

though  he  was  a  purchaser  for  value,  and  without  notice  of  the  de- 
feasible nature  of  the  title.®*  Or  if  the  infant  elects  to  sue  his  ven- 
dee, he  may  recover  the  market  value  of  the  property  at  the  time 
of  disaffirmance.®^ 

Where  services  have  been  rendered  by  an  infant  under  a  voidable 
contract,  and  he  has  received  nothing  under  it,  he  may,  on  disaffirm- 
ing the  contract,  recover  the  value  of  the  services  as  upon  an  im- 
plied contract.®*  In  such  a  case  he  may,  according  to  the  better 
opinion,  recover  without  any  deduction  for  damages  caused  by  his 
breach  of  the  contract,  for  to  allow  such  a  deduction  would  be,  in 
effect,  to  enforce  the  contract.®''  So,  also,  if  an  infant  has  paid 
money  or  parted  with  other  property  under  a  voidable  contract, 
and  has  himself  received  nothing,  he  may  recover  what  he  has  part- 
ed with  on  avoiding  the  contract.®'  As  to  whether  an  infant  who 
has  received  something  under  his  contract  can  avoid  it  and  recover 
what  he  has  parted  with,  or  for  what  he  has  done,  the  authorities 
are  conflicting.  We  have  already  discussed  this  question,  and 
shown  the  different  positions  which  the  courts  have  taken. ®^ 

A  disaffirmance  cannot  be  retracted.  Ratification  of  a  contract 
after  it  has  once  been  disaffirmed  comes  too  late.®® 

8  2  Hill  V.  Anderson,  5  Smedes  &  M.  (Miss.)  216;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209 ;  Searcy  v.  Hunter,  81  Tex.  644,  17 
S.  W.  372,  26  Am.  St.  Rep.  837 ;  Downing  v.  Stone,  47  Mo.  App.  144 ;  Miles  v. 
Lingerman,  24  Ind.  385.  See  "Infants,"  Bee.  Dig.  (Kev-No.)  §  31;  Cent.  Dig. 
%62. 

8  3  Beickler  v.  Guenther,  121  Iowa,  419,  96  N.  W.  895.  See  "Infants,"  Dec. 
Dig.  (Keu-^fo.)  §  SI;   Cent.  Dig.  §  62. 

8  4  Medbury  v.  Watrous,  7  Hill  (N.  Y.)  110;  Gaffney  v.  Hayden,  110  Mass. 
137,  14  Am.  Rep.  580 ;  Price  v.  Furman,  27  Vt  268,  65  Am.  Dec.  194 ;  Yent 
V.  Osgood,  19  Pick.  (Mass.)  572 ;  Ray  v.  Haines,  52  HI.  485 ;  Judkins  v.  Walk- 
er, 17  Me.  38,  35  Am.  Dec.  229 ;  Vehue  v.  Pinkham,  60  Me.  142 ;  Lowfe  v.  Sink- 
lear,  27  Mo.  308;  Dallas  v.  Hollingsworth,  3  Ind.  537;  Lufkin  v.  Mayall,  25 
N.  H.  82;  Dearden  v.  Adams,  19  R.  I.  217,  36  Atl.  3.  But  he  can  recover  no 
more  than  he  is  equitably  entitled  to  under  all  the  circumstances.  Hagerty  v. 
Lock  Co.,  62  N.  H.  576.  See  "Infants,"  Dec.  Dig.  {Key-No.)  §§  49,  58;  Cent. 
Dig.  §  159. 

ssDerocher  v.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  2SG;  Whitmarsh 
V.  Hall,  3  Denio  (N.  Y.)  375;  Radley  v.  Kenedy  (City  Ct.  Brook.)  14  N.  Y, 
.Supp.  268.  But  see  Moses  v.  Stevens,  2  Pick.  (Mass.)  332;  Thomas  v.  Dike, 
11  "Vt.  273,  34  Am.  Dec.  690.  The  defendant  may  set  off  any  legal  claim 
against  the  infant;  as,  for  instance,  for  necessaries  furnished  him.  Meredith 
V.  Crawford,  34  Ind.  399.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  58;  Cent.  Dig. 
'%159. 

8  8  gtafford  V.  Roof,  9  Cow.  (N.  Y.)  626;  Corpe  v.  Overton,  10  Bing.  252; 
Millard  v.  Hewlett,  19  Wend.  (N,  Y.)  301.  And  see  cases  cited  in  note  C9, 
supra.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  58;   Cent.  Dig.  §§  158,  159. 

8  7  Ante,  p.  213, 

•  8  McCarty  v.  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  130;    Tippon 


220  CAPACITY   OF   PARTIES  (Ch.  6 


SAME— TORTS  IN  CONNECTION  WITH  CONTRACTS 

115.  Though  an  infant  is  liable  for  his  torts,  a  breach  of  contract 

cannot  be  treated  as  a  tort,  so  as  to  make  him  liable.  The 
tort  must  be  separate  and  independent  of  it. 

116.  At  common  law,  though  it  is  otherwise  in  equity,  an  infant's 

false  representations  as  to  his  age  will  not  estop  him  from 
avoiding  his  contract ;  they  may,  however,  render  him  lia- 
ble in  an  action  for  deceit. 

Though  an  infant  is  liable  for  his  torts,  it  is  well  settled  that  a 
breach  of  contract  cannot  be  treated  as  a  tort,  so  as  to  make  him  lia- 
ble. The  wrong,  according  to  the  weight  of  authority,  must  be 
more  than  a  misfeasance  in  the  performance  of  the  contract,  and 
must  be  separate  from  and  independent  of  it.*'  "The  test  of  an  ac- 
tion against  an  infant,"  it  has  been  said,  "is  whether  a  liability  can 
be  made  out  without  taking  notice  of  the  contract."  '°  Or,  accord- 
ing to  an  Indian  case:  "The  test,  and  the  only  satisfactory  test,  is 
supplied  by  the  answer  to  the  question  :  Can  the  infant  be  held  liable 
without  directly  or  indirectly  enforcing  his  promise?"®^  Thus  an 
infant  cannot  be  held  liable  for  false  warranty  on  the  sale  or  ex- 

T.  Insurance  Co.,  130  N.  C.  23,  40  S.  E.  822,  57  L.  R.  A-  505.  See  "Infantt," 
Dec.  Dig.  (Key-Wo.)  §  58;   Cent.  Dig.  §§  loS,  159. 

89  Jennings  v.  Rundall,  8  Term  R.  335,  Ewell,  Lead.  Cas.  185 ;  Gilson  v. 
Spear.  38  Vt.  311,  88  Am.  Dec.  G59;  Eaton  v.  Hill,  .50  N.  H.  235.  9  Am.  Rep. 
189;  Freeman  v.  Roland,  14  R.  I.  39,  51  Am.  Rep.  340;  West  v.  Moore.  14  Vt. 
447,  39  Am.  Dec.  235;  Campbell  v.  Perkins,  8  N.  Y.  at  page  440;  Campbell  v. 
Stakes,  2  Wend.  (N.  T.)  137,  19  Am,  Dec.  5G1 ;  Mathews  v.  Cowan,  59  111. 
341 ;  Penrose  v.  Curren,  3  Rawle  (Pa.)  351,  24  Am.  Dec.  356.  But  see  Vance 
V.  Word,  1  Nott  &  McC.  (S.  C.)  197,  9  Am.  Dec.  GS3 ;  Peigne  v.  Sutcliffe.  4  Mc- 
Cord  (S.  C.)  387,  17  Am.  Dec.  756;  RICE  v.  BOYER,  108  Ind.  472,  9  N.  E. 
420,  58  Am.  Rep.  53,  Throckmorton  Cas.  Contracts,  143 ;  Fitts  v.  Hall,  9  N.  H. 
441.  An  infant  is  not  bound  on  his  warranties  in  an  application  for  insur- 
ance, and  the  insurer  cannot  defend  an  action  on  the  polii'y  by  proving  their 
falsity.  O'Rourke  v.  Insurance  Co.,  23  R.  I.  457,  50  Atl.  834,  57  L.  R.  A.  496, 
91  Am.  St.  Rep.  643.  A  promise  by  an  infant  to  marry  is  not  binding  on  him. 
but  he  may  nevertheless  be  held  liable  for  his  tort  in  seducing  a  woman  under 
promise  of  marriage.  Becker  v.  Mason,  93  Jlich.  336,  53  N.  W.  361.  See  "In- 
fants," Dec.  Dig.  (Key-No.)  §  59;    Cent.  Dig.  §§  16J-16G. 

eo  Lowery  v.  Cate,  108  Tenn.  54,  64  S.  W.  1068,  57  L,  R.  A.  673  and  note,  91 
Am.  St  Rep.  744;  Collins  v.  Gifford,  203  N.  Y.  465,  96  N.  E.  721,  38  L.  R.  A. 
(N.  S.)  202,  Ann.  Cas.  1913A,  969.  See  "Infants,"  Dec.  Dig.  (Eeij-No.)  §§  56. 
59;   Cent.  Dig.  §§  99,  100,  161-166. 

»i  RICE  V.  BOYER,  108  Ind.  472,  9  N.  E.  420,  58  Am.  Rep.  53,  Throckmor- 
ton Cas.  Coutracts,  143.  See  "Infanta,"  Dec.  Dig.  (Key-No.)  §  59;  Cent.  Dig. 
§§  161-166. 


§§    115-llG)        TORTS   IN    CONNECTION    WITH    CONTRACTS  221 

change  of  a  horse. "^  And  where  an  infant  hired  a  horse  to  ride, 
and  injured  it  by  overriding,  it  was  held  that  he  could  not  be  made 
liable  upon  the  contract  by  framing  the  action  in  tort  for  negli- 
gence.**^ On  the  other  hand,  where  an  infant  hired  a  horse  express- 
ly for  riding,  and  not  for  jumping,  and  then  lent  it  to  a  friend,  who 
killed  it  in  jumping,  he  was  held  liable,  because  what  he  had  done 
was  not  an  abuse  of  the  contract,  but  an  act  which  he  was  express- 
ly forbidden  to  do,  and  was,  therefore,  independent  of  the  con- 
tract.^* 

The  fraud  of  an  infant  in  falsely  representing  himself  to  be  of 
age,  and  so  inducing  another  to  contract  with  him,  does  not  estop 
him  from  pleading  his  infancy  if  sued  upon  his  contract. ®°  He 
may,  however,  in  many  jurisdictions,  be  held  liable  in  an  action  for 
deceit.®*     In  equity,  where  the  infant  has  falsely  represented  that 

»2  Collins  V.  Gifford,  203  N.  Y.  465,  96  N.  E.  721,  38  L.  R.  A.  (N.  S.)  202,  Ann. 
Cas.  1913A,  969;  Green  v.  Greenbank,  2  Marsh.  485  (in  which  it  is  said  "the 
assumpsit  is  clearly  the  foundation  of  the  action ;  for  it  is  in  fact  undertaking 
that  the  horse  was  sound").  See  "Infants,"  Dec^  Dig.  {Key-No.)  §  62;  Cent. 
Dig.  §  168. 

93  Jennings  v.  Rundall,  8  Term  R.  335.  He  may,  however,  sue  in  trespass, 
though  he  cannot  bring  an  action  on  the  case,  as  the  latter,  but  not  the  for- 
mer, would  be  based  on  lawful  possession  in  defendant  under  the  contract. 
Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561.  See  "Infants,"  Dec. 
Dig.  (Eeij-No.)  §  61;  Cent.  Dig.  §  167. 

91  Burnard  v.  Haggis,  15  C.  B.  (N.  S.)  45;  Homer  v.  Thwing,  3  Pick.  (Mass.) 
492 ;  Ray  v.  Tubbs,  50  Vt.  688.  28  Am.  Rep.  519.  But  see  Penrose  v.  Curren, 
3  Rawle  (Pa.)  351.  24  Am.  Dec. '356.  See  "Infants,"  Dec.  Dig.  {Key-No.)  § 
61;    Cent.  Dig.  §  161. 

05  RICE  V.  BOYER.  108  Ind.  472,  9  N.  E.  420.  58  Am.  Rep.  53,  Throckmor- 
ton Cas.  Contracts,  143 ;  Studwell  v.  Shapter,  54  N.  Y.  249 ;  Burdett  v.  Wil- 
liams (D.  C.)  30  Fed.  697;  Wieland  v.  Kobick,  110  111.  16,  51  Am.  Rep.  676; 
Conroe  v.  Birdsall,  1  Johns.  Cas.  (N.  Y.)  127,  1  Am.  Dec.  105 ;  Merriam  v. 
Cunningham,  11  Cush.  (Mass.)  40;  Brown  v.  McCune,  5  Sandf.  (N.  Y.)  228; 
Burley  v.  Russell,  10  N.  H.  184,  34  Am.  Dec.  146;  Conrad  v.  Lane,  26  Minn. 
3S9,  4  N.  W.  695,  37  Am.  Rep.  412 ;  Sims  v.  Everhardt,  102  U.  S.  300,  26  L. 
Ed.  87 ;  Norris  v.  Vance,  3  Rich.  Law  (S.  C.)  164 ;  Whitcomb  v.  Joslyn,  51  Vt. 
79.  31  Am.  Rep.  678;  McKamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312;  Brooks  v. 
Sawyer,  191  Mass.  151,  76  N.  E.  953.  114  Am.  St.  Rep.  594;  Harper  v.  Utsey 
(Tex.  Civ.  App.)  97  S.  W.  508.  But  .see  Bradshaw  v.  Van  Winkle,  1.33  Ind.  134, 
32  N.  E.  877 ;  Lacy  v.  Pixler.  120  Mo.  383,  25  S.  W.  206 ;  Carolina  Interstate 
Building  &  Loan  Ass'n  v.  Black,  119  N.  C.  323,  25  S.  E.  975;  New  York 
Building  Loan  Banking  Co.  v.  Fisher,  20  Misc.  Rep.  244,  45  N.  Y.  Supp.  795. 
Contra,  under  Kansas  statute,  Dillon  v.  Bumham,  43  Kan.  77,  22  Pac.  1016. 
(■'cc  ''Infants,"  Dec.  Dig.  (Key-No.)  §  56;    Cent.  Dig.  §  100. 

0  6  Fitts  V.  Hall,  9  N.  H.  441  ;  RICE  v.  BOYER,  108  Ind.  472,  9  N.  E.  420,  5S 
Am.  Rep.  53,  Throckmorton  Cas.  Contracts,  143 ;  Wallace  v.  Morss,  5  Hill  (N. 
Y.)  391;  Burley  v.  Russell.  10  N.  H.  184,  34  Am.  Dec.  146;  Manning  v.  John- 
son. 20  Ala.  446,  62  Am.  Dec.  732;  Eckstein  v.  Frank,  1  Daly  (N.  Y.)  334. 
Contra,  Nash  v.  Jewett,  61  Vt.  501,  18  Atl.  47,  4  L.  R.  A.  561,  15  Am.  St.  Bop. 


222  CAPACITY   OF   PARTIES  (Ch.  6 

he  was  of  age,  or  taken  active  steps  to  conceal  his  age,  or  been  oth- 
erwise guilty  of  fraud,  and  has  thereby  induced  the  other  party  to 
enter  into  the  contract,  his  fraud  will  estop  him  from  pleading  his 
uifancy  to  the  other's  prejudice.®^  Mere  failure  to  disclose  his  age, 
however,  is  not  such  fraud  as  will  warrant  equitable  interference 
with  the  common-law  rule;  °^  nor  is  mere  misrepresentation  of  age 
sufficient,  if  it  does  not  in  fact  deceive  the  other  party."'  Where 
an  infant  obtains  goods  by  false  and  fraudulent  representations  as 
to  his  age,  the  better  opinion  is  that  the  other  party  may  rescind 
and  recover  them  back.^ 

We  have  already  to  some  extent  noticed  the  remedies  of  the  adult 
party  where  an  infant  repudiates  his  contract  after  having  received 
the  consideration.  In  such  a  case,  he  no  longer  has  a  right  to  hold 
the  consideration;  and,  if  he  refuses  to  return  it,  he  is,  according 
to  the  better  opinion,  guilty  of  a  tort,  for  which  the  other  party 
may  maintain  an  action.' 

931;  Johnson  v.  Pie,  1  Sid.  2.58;  Slayton  v.  Barry,  175  Mass.  513,  56  N.  E. 
574,  49  L.  R.  A.  5G0,  78  Am.  St.  Rep.  510.  He  is  not  liable  in  trover.  Slayton 
V.  Barry,  supra.    See  "Infants"  Dec.  Dig.  (Eey-No.)  §  56;   Cent.  Dig.  §  100. 

8  7  Ferguson  V.  Bobo,  54  Miss.  121;  Commander  v.  .Brazil,  88  Miss.  608,  41 
South.  497,  9  L.  R.  A.  (N.  S.)  1117;  County  Board  of  Education  v.  Hensley, 
147  Ky.  441,  144  S.  W.  63,  42  L.  R.  A.  (N.  S.)  643  (in  which  it  is  said,  per  Mil- 
ler, J. :  "The  rule  is  simply  an  application  of  the  equitable  doctrine  that  he 
who  misleads  another  by  his  solemn  assertion  of  a  fact  will  not  be  allowed 
to  assert  the  contrary  to  the  prejudice  of  the  person  whom  he  has  thus  mis- 
led, and  so  perpetrate  a  fraud  upon  him").  International  Land  Co.  v.  Marsh- 
all, 22  Okl.  693,  98  Pac.  951,  19  L.  R.  A.  (N.  S.)  1056  (holding  that  an  infant 
guilty  of  fraud  may  not  have  his  deed  canceled  without  offering  to  refund  the 
consideration  received).  But  "in  order  to  raise  estoppel  out  of  the  evidence 
against  the  minor,  that  evidence  must  plainly  show,  not  doubtfully  or  vaguely, 
but  clearly  and  convincingly,  the  presence  of  actual,  active,  and  willful  fraud 
and  misrepresentation."  Lake  v.  Perry,  95  Miss.  550,  49  South.  .569,  574,  per 
Whitfield,  C.  J.  And  see  Grauman,  Marx  &  Cline  Co.  v.  Krienitz,  142  Wis.  556, 
126  N.  W.  50,  where  estoppel  is  said  to  be  confined  to  cases  where  the  infant  is 
in  fact  developed  to  the  condition  of  actual  discretion,  and  to  cases  of  actual 
fraud,  and  where  the  contract  or  transaction  is  beneficial.  See  "Infants,"  Dec. 
Dig.  (Eey-'No.)  §  56;  Cent.  Dig.  §  100. 

98  Baker  v.  Stone,  136  Mass.  405;  Sewell  v.  Sewell,  92  Ky.  500,  18  S.  W. 
162,  36  Am.  St.  Rep.  606 ;  Davidson  v.  Young,  38  111.  145 ;  Brantley  v.  Wolf, 
00  Miss.  420 ;  Price  v.  Jennings.  62  Ind.  Ill ;  Thormaehlen  v.  Kaeppel,  86 
Wis.  378,  56  N.  W.  1089.    See  "Infants,"  Dec.  Dig.  (Key-No.)  §  56;   Cent.  Dig. 

§  ipo. 

89  International  Text-Book  Co.  v.  Doran,  SO  Conn.  307,  68  Atl.  255;  Charles 
V.  Hastedt,  51  N.  J.  Eq.  171,  26  Atl.  564.  -See  "Infants,"  Dec.  Dig.  (Key-No.)  §§ 
55,  56;   Cent.  Dig.  §§  100,  1.3o. 

1  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Neflf  v.  Landis,  110  Pa. 
204,  1  Atl.  177.     -See  "Infants,"  Dec.  Dig.  (Key-No.)  §  56;    Cent.  Dig.  §  100. 

2  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105 ;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec  209 ;    Vasse  v.  Smith,  6  Cranch,  226,  3 


§    117)  INSANE    PERSONS  223 

If  the  infant,  while  rightfully  in  possession  of  the  consideration 
which  he  has  received,  has  wasted  or  disposed  of  it  during  his  mi- 
nority, and  he  is  allowed  to  disaffirm  his  contract,  the  other  party 
is  remediless,^  unless  he  can  trace  the  property  into  the  hands  of 
those  who  obtained  it  from  the  infant. 


INSANE  PERSONS— IN  GENERAL 

117.  As  a  rule,  a  contract  entered  into  by  an  insane  person,  or  per- 
son non  compos  mentis,  is  voidable  at  his  option;  but  the 
rule  is  subject  to  exceptions,  as  follows:  * 
EXCEPTIONS~(a)  The    following    contracts    are    valid    and 
binding: 

(1)  Contracts  created  by  law,  or  quasi  contracts. 

(2)  In  most,  but  not  all,  jurisdictions,  where  the  sane  party 

acted  fairly  and  in  good  faith,  without  actual  or  con- 
structive knowledge  of  the  other's  insanity,  and  the 
contract  has  been  so  far  executed  that  he  cannot  be 
placed  in  statu  quo. 
(b)  The  following  contracts  are  void: 

(1)  In  most,  but  not  all,  jurisdictions,  contracts  by  a  person 

who  has  been  judicially  declared  insane  on  inquisition, 
and  placed  under  guardianship, 

(2)  In  a  few  jurisdictions,  deeds;    and,  in   most  jurisdic- 

tions, powers  of  attorney  or  other  appointments  of  an 
agent. 

Formerly  it  was  thought  that  a  man  could  not  avoid  a  contract 
entered  into  while  he  was  non  compos  mentis.  It  was  said  to  be  a 
maxim  of  the  common  law  that  no  man  of  full  age  should  be  allow- 
ed by  plea  to  stultify  himself,  and  thereby  avoid  his  own  deed  or 
contract.^  It  seems,  however,  that  this  never  was  the  common  law, 
and  that  the  cases  so  holding  were  erroneous.®     At  any  rate,  the 

L.  Ed.  207 ;  Manning  v.  Johnson,  26  Ala.  44G,  62  Am.  Dec.  732.  See  "Infants," 
Dec.  Dig.  {Key-No.)  §  12;   Cent.  Dig.  §§  180-183. 

8  Ante,  i>.  215,  note  69. 

*  In  Ipock  v.  Atlantic  &  N.  C.  R.  Co.,  158  N.  C.  445,  74  S.  E.  352,  this  state- 
ment of  the  black  letter  text,  together  with  that  in  Exception  (a),  (2),  is 
quoted  and  approved.  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  73;  Cent. 
Dig.  §  125. 

B  Beverley's  Case,  4  Coke,  123;  Co.  Litt.  147;  2  Bl.  Comm.  292.  See  "In- 
gone  Persons,"  Dec.  Dig.  (Key-No.)  §  73;    Cent.  Dig.  §  125. 

«  Fitzh.  Nat  Brev.  202;  Yates  v.  Boon,  2  Strange,  1104;  Webster  v.  Wood- 
ford, 3  Day  (Conn.)  90 ;    Mitchell  y.  Kingman,  5  Pick.  (Mass.)  431 ;    Cameron- 


224  CAPACITY   OF   PARTIES  (Ch.  6 

doctrine  has  long  since  been  exploded,  and  it  is  almost  universally- 
held  that  a  contract  made  by  a  person  who  is  lacking  in  mental 
capacity,  unless  he  has  been  judicially  declared  insane,  is  at  most 
voidable.'' 

The  incapacity  may  result  from  lunacy,*  from  idiocy,'  from  im- 
becility,^" from  senile  dementia,^^  or  any  other  defect  or  disease  of 
the  mind,  whatever  may  be  its  cause. ^^  To  render  a  person  thus 
incapable  of  contracting,  his  infirmity  need  not  be  so  great  as  to 
dethrone  his  reason,  nor  amount  to  entire  want  of  reason ;  ^'  but, 
on  the  other  hand,  it  must  be  something  more  than  mere  weakness 
of  intellect.^*     It  must  be  such  as  to  render  the  person  incapable 

Karkley  Co.  v.  Thornton  Light  &  Power  Co.,  1.3S  N.  C.  365,  50  S.  E.  695,  107 
Am.  St  Rep.  532.  See  "Insane  Persons,"  Dec.  Dig.  (Kcy-yo.)  §  75;  Cent.  Dig. 
§  125. 

7  Post,  p.  227.  Prior  to  inquest,  sanity  Is  presumed,  and  the  burden  of 
proof  is  on  the  party  alleging  Insanity.  Hill-Dodge  Banking  Co.  v.  Loomis.  140 
Mo.  App.  62,  119  S.  W.  967.  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  73; 
Cent.  Dig.  §  125. 

8  Merritt  v.  Gumaer,  2  Cow.  (N.  Y.)  552.  See  "Insane  Persons,"  Dec.  Dig. 
(Key-No.)  §  72;   Cent.  Dig.  §  125. 

9  BuiTiham  v.  Kidwell,  113  111.  425 ;  Ball  v.  Mannin,  3  Bligh  (N.  S.)  1,  Ewell, 
Lead.  Cas.  534.  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  72;  Cent.  Dig.  § 
125. 

10  Smith's  Committee  v.  Forsythe,  90  S.  W.  1075.  28  Ky.  Law  Rep.  1034.  See 
^'Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  72 ;    Cent.  Dig.  §  125. 

11  As  to  weakness  of  intellect  or  imbecility  from  old  age,  see  Guild  v.  Hull, 
127  111.  523,  20  N.  E.  665;  Peabody  v.  Kendall,  145  111.  519,  32  N.  E.  674;  Argo 
V.  Coffin,  142  111.  308,  32  N.  E.  679,  34  Am.  St.  Rep.  86 ;  Lynch  v.  Doran,  95 
]\Iich.  ?,9d,  54  N.  W.  882 ;  King  v.  Cummings,  60  Vt.  502,  11  Atl.  727 ;  Keeble 
V.  Cummins,  5  Hayw.  (Tenn.)  43;  Coleman  v.  Frazer,  3  Bush  (Ky.)  300;  Bres- 
sey's  Adm'r  v.  Gross  (Ky.)  7  S.  W.  150;  Clark  v.  Kirkpatrick  (N.  J.  Ch.)  16' 
Atl.  309 ;  Trimbo  v.  Trimbo,  47  Minn.  389,  50  N.  W.  350 ;  Cole  v.  Cole,  21  Xeb. 
84,  31  N.  W.  493 ;  Crowe  v.  Peters,  63  Mo.  429 ;  Shaw  v.  Ball,  55  Iowa,  55,  7 
N.  W.  413 ;  Marshall  v.  Marshall,  75  Iowa,  132,  39  N.  W.  2.':!0.  Old  age  is  not  of 
itself  evidence  of  incapacity.  Buckey  v.  Buckey,  3S  W.  Va.  168,  18  S.  E.  383. 
And  see  cases  cited  above.  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  72; 
Cent.  Dig.  §  125. 

12  See  Henderson  v.  McGregor,  30  Wis.  78;  Brothers  v.  Bank,  84  "Wis.  3S1, 
54  N.  W.  786,  36  Am.  St.  Rep.  932 ;  .Somes  v.  Skinner,  16  Mass.  348 ;  Hale  v. 
Brown,  11  Ala.  87 ;  Conant  v.  Jackson,  16  Vt.  335 ;  Wilson  v.  Oldham,  12  B. 
Mon.  (Ky.)  55;  Johnson  v.  Chadwell.  8  Humph.  (Tenn.)  145.  Result  of  habit- 
ual drunkenness:  Bliss  v.  Railroad  Co.,  24  Vt.  424;  INIenkins  v.  Lightner,  IS 
111.  282.     See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  72;    Cent.  Dig.  §  125. 

13  Ball  V.  Mannin,  3  Bligh  (N.  S.)  1,  Ewell,  Lead.  Cas.  534.  For  good  illus- 
tration of  degree  of  mental  infirmity  sufficient  to  constitute  incapaci,ty,  see 
Smith's  Committee  v.  Forsjjthe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034.  See 
"Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  72;   Cent.  Dig.  §  125. 

14  Dennett  v.  Dennett,  44  N.  H.  531,  S4  Am.  Dec.  97;  Stone  v.  Wilbem.  S3 
111.  105;  Lawrence  v.  Willis,  75  N.  C.  471;  Simonton  v.  Bacon.  49  Miss.  5S2; 
Des  Moines  Nat  Bank  v.  Chisholm,  71  Iowa,  675,  33  N.  W.  234 ;    Faruam  v. 


§    117)  INSANE    PERSONS  225 

of  comprehending  the  subject  of  the  contract,  and  its  nature  and 
probable  consequences.^"  He  need  not  be  permanently  insane;  it 
is  enough  if  he  is  insane  at  the  time  he  enters  into  the  contract/' 
A  contract  made  during  a  lucid  interval  is  binding.^'^ 

Nor  need  the  insanity  be  general.  A  person  who  is  laboring  un- 
der an  insane  delusion  is  incapable  of  making  a  binding  contract  if 
his  delusion  is  so  connected  with  the  subject-matter  of  the  contract 
as  to  render  him  incapable  of  comprehending  its  nature  and  prob- 
able consequences.  If  such  was  his  condition,  he  may  avoid  the 
contract,  though  he  may  have  been  perfectly  sane  in  respect  of 
other  matters,  and  might  have  been  able  to  make  a  binding  contract 
in  reference  to  some  other  subject-matter.^* 

Brooks,  9  Pick.  (M&ss.)  212 ;  Guild  v.  Hull,  127  111.  523,  20  N.  E.  665 ;  Davis 
V.  Phillips,  85  Mich.  19S,  48  N.  W.  513 ;  White  v.  Farley,  81  Ala.  563,  8  South. 
215 ;  Maddox  v.'  Simmons,  31  Ga.  528 ;  Kimball  v.  Cuddy,  117  111.  213,  7  N. 
E.  589 ;  Dewey  v.  Allgire,  37  Neb.  6,  55  N.  W.  276,  40  Am.  St.  Rep.  468 ;  Cain 
V.  Warford,  33  Md.  23 ;  Cadwallader  v.  West,  48  Mo.  483.  The  fact  that  a  per- 
son is  deaf  and  dumb  does  not  alone  render  him  incapable.  See  Brower  v. 
Fisher,  4  Johns.  Ch.  (N.  Y.)  441;  Brown  v.  Brown,  3  Conn.  299,  8  Am.  Dec. 
187 ;  Barnett  v.  Barnett,  54  N.  C.  221.  See  "Insane  Persona,"  Dec.  Dip.  (Key- 
No.)  §  72;   Cent.  Dig.  §  125. 

18  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97-;  Perry  v.  Pearson,  135 
111.  218,  25  N.  E.  636 ;  Bond  v.  Bond,  7  Allen  (Mass.)  1 ;  Young  v.  Stevens,  48 
N.  H.  135.  2  Am.  Eep.  202,  97  Am.  Dec.  592;  Musselman  v.  Cravens,  47  Ind.  1; 
LiUy  V.  Waggoner,  27  111.  396;  Baldwin  v.  Dunton,  40  111.  188;  Titcomb  v. 
Vantyle,  84  111.  371 ;  Worthington  v.  Worthington  (Md.)  20  Atl.  911 ;  Brown  v. 
Brown,  108  Mass.  .386 ;  Crowther  v.  Rowlandson,  27  Cal.  381 ;  Somers  v. 
Pumphrey,  24  Ind.  231 ;  Burnham  v.  Mitchell,  34  Wis.  136 ;  Henderson  v.  Mc- 
Gregor, 30  Wis.  78 ;  Hovey  v.  Chase,  52  Me.  304,  83  Am.  Dec.  514 ;  Hovey  v. 
Hobson,  55  Me.  256 ;  Aiman  v.  Stout,  42  Pa.  114 ;  Noel  v.  Karper,  53  Pa.  97 ; 
Dicken  v.  Johnson,  7  Ga.  484 ;  Lozear  v.  Shields,  23  N.  J.  Eq.  509 ;  Tolson's 
Adm'r  v.  Garner,  15  Mo.  494 ;  Swartwood  v.  Chance,  131  Iowa,  714,  109  N.  W. 
297 ;  RatlifC  v.  Baltzer's  Adm'r,  13  Idaho,  152,  89  Pac.  71.  See  "Insane  Per- 
sons," Dec.  Dig.  (Key-No.)  §  72;   Cent.  Dig.  §  125.  ' 

16  Curtis  V.  Brownell,  42  Mich.  165,  3  N.  W.  936;  Peaslee  v.  Robbins,  3 
Mete.  (Mass.)  164;  Jenners  v.  Howard,  6  Blackf.  (Ind.)  240.  See  "Insane 
Persons:'  Dec.  Dig.  (Key-No.)  §  72;    Cent.  Dig.  §  125. 

17  Hall  V.  Warren,  9  Ves.  605;  Lilly  v.  Waggoner,  27  111.  395;  McCorm^ck 
V.  Littler,  85  111.  62,  28  Am.  Rep.  610 ;  Smith  v.  Smith,  108  N.  C.  365,  12  S. 
E.  1045,  and  13  S.  E.  113;  Jones'  Adm'r  v.  Perkins,  5  B.  Mon.  (Ky.)  222; 
Norman  v.  Trust  Co.,  92  Ga.  295,  18  S.  E.  27 ;  Beckwith  v.  Butler,  1  Wash. 
(Va.)  224;  Carpenter  v.  Carpenter,  8  Bush  (Ky.)  283;  Staples  v.  Wellington, 
58  Me.  453;  Stewart  v.  Redditt,  3  Md.  81;  Wright  v.  Market  Bank  (Tenn.) 
60  S.  W.  623.  The  authorities  are  conflicting  as  to  whether  the  burden  is 
on  the  other  party  to  show  that  the  contract  was  made  in  a  lucid  interval. 
That  it  is,  see  Fishburne  v.  Ferguson's  Heirs,  84  Va.  87,  4  S.  E.  575;  Sheet? 
V.  Bray,  125  Ind.  33,  24  N.  E.  357;  Hall  y.  Warren,  9  Ves.  605.  Contra, 
Vl'right  V.  Wright,  139  Mass.  177,  29  N,  E.  380.  See  "Insane  Persons,"  Dec. 
Dig.  (Key-No.)  §  72;   Cent.  Dig.  §  125. 

18  Bond  V.   Bond,  7  Allen  (Mass.)   1;    Riggs  y.  Tract  Soc,  95  N.  Y.   503; 

Clark  Cont.(3d  Ed.) — 15 


226  CAPACITY   OF  PARTIES  (Ch.  6 

Effect  of  Contracts 

Thus  far  we  have  spoken  of  the  contracts  of  a  person  non  compos 
mentis  as  being  voidable  only,  and  as  a  rule  they  are  so;  but,  as  in 
the  case  of  infants,  some  of  his  contracts  as  valid,  and  some  of  them 
are  held  to  be  absolutely  void.  In  some  jurisdictions  the  contract 
is  held  binding  where  the  other  party  acted  in  good  faith,  and  with- 
out knowledge  of  the  insanity.  Of  this  we  will  presently  speak  at 
some  length. 
Same — Qiia^si  Contracts 

As  in  the  case  of  infancy,  the  rule  that  a  person  may  avoid  a  con- 
tract made  while  he  was  insane  does  not  apply  to  so-called  contracts 
created  by  law,  or  quasi  contracts,  for  here  the  obligation  is  impos- 
ed by  law  without  regard  to  the  consent  of  the  pai;ty  bound.^" 

Same — Contracts  for  Necessaries 

Nor  does  the  rule  apply  to  the  contracts  of  a  person  non  compos, 
mentis  for  necessaries  furnished  to  himself  or  to  his  wife,  or,  in 
some  jurisdictions,  to  his  children. 2**  The  rules  on  this  subject  are 
substantially  the  same  as  in  the  case  of  an  infant's  necessaries;  ex- 
cept, it  seems,  that,  unlike  an  infant,  a  person  non  compos  mentis 
is  liable  for  labor  and  materials  furnished  for  the  preservation  of 
his  estate,  where  tliey  were  necessary  for  its  preservation.^^     In 

Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;  Searle  v.  Galbraith,  73 
111.  269 ;  Alston  v.  Boyd,  6  Humph.  (Tenn.)  504 ;  Samuel  v.  Marshall,  3  Leigh 
(Va.)  567;  Domlnick  v.  Randolph,  124  Ala.  557,  27  South.  481.  Monomania 
on  the  subject  of  religion  or  spiritualism.  Boyce's  Adm'r  v.  Smith,  9  Grat. 
(Va.)  704,  60  Am.  Dec.  313;  Lewis  v.  Arbuckle,  85  Iowa,  335,  52  N.  W.  237, 
16  L.  R.  A.  677 ;  West  v.  Russell,  48  Mich.  74,  11  N.  W.  812 ;  Burgess  v.  Pol- 
lock, 53  Iowa,  273,  5  N.  W.  179,  36  Am.  Rep.  218.  See  ''Insane  Persons,"  Dec. 
Dig.  (Key-No.)  §  72;    Gent.  Dig.  §  125. 

19  Reando  v.  Misplay,  90  Mo.  251.  2  S.  W.  405,  59  Am.  Rep.  13 ;  post.  p.  644. 
See  ''Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  75;    Cent.  Dig.  §§  125-1S2. 

20  La  Rue  v.  Gilkyson,  4  Pa.  375,  45  Am.  Dec.  700 ;  Richardson  v.  Strong, 
35  N,  C.  106,  55  Am.  Dec.  430;  McCormlck  v.  Littler,  85  111.  62,. 28  Am.  Rep. 
610;  Baxter  v.  Portsmouth,  5  Barn.  &  C.  170;  Van  Horn  v.  Hann,  39  N.  J. 
Law,  207;  Read  v.  Legard,  6  Exch.  636;  Surles  v.  Pipkin,  69  N.  C.  513; 
Shaw  V.  Thompson,  16  Pick.  (Mass.)  198,  26  Am.  Dec.  655 ;  Sawyer  v.  Lufkiu, 
56  Me.  308 ;  Reando  v.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13 ; 
Pearl  v.  McDowell,  3  J.  J.  Marsh.  (Ky.)  658,  20  Am.  Dec.  199;  Kendall  v 
May,  10  Allen  (Mass.)  59;  Rhodes  v.  Rhodes,  44  Ch.  Div.  94;  Sceva  v.  True, 
53  N.  H.  627.  Liability  for  necessaries  furnished  his  wife.  Read  v.  Legard, 
supra.  And  see  Smith's  Committee  v.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law 
Rep.  1034,  holding  imbecile  liable  for  necessaries  furnished  himself,  wife,  and 
children,  although  the  other  party  had  knowledge  of  his  incapacity  to  con- 
tract. He  has  even  been  held  liable  for  luxuries  furnished  in  good  faith. 
Kendall  v.  May,  supra.  See  "Insane  Persons,"  Dec.  Dig.  i^ey-No.)  §  7J; 
Cent.  Dig.  §§  S9,  128,  129. 

21  Williams  v.  V>'^entworth,  5  Beav.  325.  Bee  "Insane  Persons,"  Dec.  Dig 
(Key-No.)  §  75;    Cent.  Dig.  §§  89,  128,  129. 


§    117)        /  INSANE   PERSONS  227 

all  cases  the  credit  must  have  been  given  to  the  insane  person,  and 
not  to  some  third  person.^*  The  fact  that  the  person  has  been 
judicially  declared  insane,  and  placed  under  guardianship,  does  not 
prevent  his  liability  for  necessaries.*" 

Same — Void  and  Voidable 

It  has  been  held  by  some  courts  that  the  deed  of  an  insane  per- 
son,** or  a  power  of  attorney  or  other  appointment  of  an  agent,*' 
is  absolutely  void.  In  most  jurisdictions,  however,  no  distinction  is 
made  in  this  respect  between  the  deed  of  an  insane  person  and  that 
of  an  infant.  It  is  held  to  be  voidable,  and  not  void.*®  As  an  almost 
universal  rule,  all  his  contracts  other  than  valid  ones  are  not  void, 
but  simply  voidable  at  his  option ;  *^  and  they  are  binding  on  the 
other  party  if  he  elects  to  hold  him.*" 

2  2  Bish.  Cont.  §  968;  Massachusetts  General  Hospital  v.  Fairbanks,  129 
Mass.  78,  37  Am.  Rep.  303 ;  Id.,  132  Mass.  414.  See  "Insane  Persons,''  Dec. 
Dig.  (Keij-No.)  §  75;    Cent.  Dig.  §§  89,  128,  '129. 

2s  McCrillis  v.  Bartlett,  8  N.  H.  569;  Sawyer  v.  Lufkin,  56  Me.  308;  Re- 
ando  V.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13;  Baxter  v.  Ports- 
mouth, 5  Barn.  &  C.  170 ;  Fruitt"  v.  Anderson,  12  111.  App.  421.  See  "Insane 
Persons,"  Dec.  Dig.  (Key-No.)  §  75;    Cent.  Dig.  §§  89,  12S,  129. 

2  4  Van  Deusen  v.  Sweet,  51  N.  T.  378  (but  see  Ingraham  v.  Baldwin,  9  N. 
Y.  45);  Rogers  v.  Blackwell,  49  Mich.  192,  13  N.  W.  512;  In  re  Estate  of 
Desilver,  5  Rawle  (Pa.)  Ill,  28  Am.  Dec.  645;  Farley  v.  Parker,  6  Or.  105, 
25  Am.  Rep.  504;  Goodyear  v.  Adams,  52  Hun,  612,  5  N.  Y.  Supp.  275; 
Brown  V.  Miles,  61  Hun.  453,  16  N.  Y.  Supp.  251;  Elder  v.  Schumacher,  18 
Colo.  433,  33  Pac.  175;  Thompson  v.  Leach,  3  Salk.  300;  Edwards  v.  Daven- 
port (0.  C.)  20  Fed.  756.  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  61; 
Cent.  Dig.  §§  93-99. 

2  5  Dexter  v.  Hall,  15  Wall.  9,  21  L.  Ed.  73.  And  see  Marvin  v.  Inglis,  39 
How.  Prac.  (N.  Y.)  329;  Plaster  v.  Rigney,  97  Fed.  12,  38  C.  C.  A.  25;  Mc- 
Clun  V.  McClun,  176  111.  376,  52  N.  E.  928.  But  see  Williams  v,  Sopieha,  94 
Tex.  430,  61  S.  W.  115;  Tiffany,  Ag.  98.  See  "Insane  Persons,"  Dec.  Dig. 
(Key-No.)  §  61;   Cent.  Dig.  §§  98-99. 

26  HOVEY  V.  HOBSON,  53  Me.  451,  89  Am.  Dec.  705,  Throckmorton,  Gas. 
Contracts,  149;  Wait  v.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391;  Gib- 
son V.  Soper,  6  Gray  (Mass.)  279,  66  Am.  Dec.  414 ;  Arnold  v.  Iron  Works, 
1  Gray  (Mass.)  434;  Allis  v.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744; 
Evans  v.  Horan,  52  Md.  602;  Burnham  v.  Kidvvell,  113  111.  425;  Eaton  v. 
Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716 ;  Boyer  v.  Berryman,  123  Ind.  451, 
24  N.  E.  249;  Breckenridge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  245,  19 
Am.  Dec.  71 ;  Allen  v.  Berryhill,  27  Iowa,  534,  1  Am.  Rep.  309 ;  French  Lum- 
bering Co.  V.  Theriault,  107  Wis.  027,  83  N.  W.  927,  51  L.  R.  A.  910,  81  Ajb. 
St.  Rep.  856;  Riley  v.  Carter,  76  Md.  581,  25  Atl.  067,  19  L.  R.  A.  489,  and 
note,  35  Am.  St  Rep.  443.  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  61; 
Cent.  Dig.  §§  93-99. 

2  7  Eaton  V.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716;  Carrier  v.  Sears, 
4  Allen  (Mass.)  336,  81  Am.  Dec.  707;    Burnham  v.  Kidwell,  113  111.  425;    Ar- 

28  See  note  28  on  following  page. 


228  CAPACITY   OF   TAUTIES  (Ch.  6 

Inquisition  and  Adjudication  of  Lunacy 

In  most  jurisdictions  it  is  held — in  some,  however,  by  reason  of 
express  statutory  provisions — that  if  a  person  has  been  judicially 
determined  to  be  insane,  and  placed  under  guardianship,  the  decree 
and  letters  of  guardianship  take  from  him  all  capacity  to  contract, 
and  that  his  contracts  while  under  guardianship  are  absolutely 
void.^"  It  has  been  held,  however,  that  this  rulQ  applies  only 
where  there  has  been  a  judgment  of  a  court  of  competent  jurisdic- 
tion declaring  the  person  of  unsound  mind  and  incapable  of  manag- 
ing his  own  estate,  and  appointing  a  guardian  or  committee  for  that 
purpose,  and  that  it  does  not  apply  to  statutory  proceedings  mere- 
ly to  determine  whether  a  person  is  insane  for  the  purpose  of  com- 
mitting him  to  a  hospital  for  the  insane."**  In  other  jurisdictions 
the  fact  that  he  has  been  adjudged  insane,  and  placed  under  guard- 
ianship, only  raises  a  presumption  of  incapacity  to  contract,  which 
may  be  rebutted ;  but  the  presumption  is  very  strong,  and  the  proof 
of  capacity  must  be  clear."^ 

nold  V.  Iron  Works,  1  Gray  (Mass.)  434;  HOVEY  v.  HOBSON,  53  Me.  451, 
89  Am.  Dec.  705,  Throckmorton,  Cas.  Contracts,  149 ;  Riley  v.  Carter,  76  Md. 
581,  25  Atl.  667,  19  L.  R.  A.  489,  35  Am.  St.  Rep.  443 ;  2Etna  Life  Ins.  Co.  v. 
Sellers,  154  Ind.  370,  56  N.  E.  97,  77  Am.  St.  Rep.  481.  Contra  In  Alabama. 
Walker  v.  Winn,  142  Ala.  560,  39  South.  12,  110  Am.  St.  Rep.  50,  4  Ann.  Cas. 
537,  where  It  is  said:  "Whatever  may  be  the  rulings  of  other  jurisdictions 
upon  the  question,  this  court  is  fully  committed  to  the  doctrine  that  the  con- 
tract of  an  insane  person  is  absolutely  void."  See  "Insane  Persons,"  Deo. 
Dig.  (Key-No.)  §  61;    Cent.  Dig.  §§  93-99. 

28  Harmon  v.  Harmon  (C.  C.)  51  Fed.  113;  Allen  v.  Berryhill,  27  lown,  534, 
1  Am.  Rep.  309;  San  Francisco  Credit  Clea ring-House  v.  McDonald,  18  Cal. 
App.  212,  122  Pac.  964  (holding  that  the  other  party  may  not  avoid  the  con- 
tract even  under  a  statute  declaring  that  "a  person  entirely  without  under- 
standing has  no  power  to  make  a  contract  of  any  kind").  See  "Insane  Per- 
sons," Dec.  Dig.  (Key-No.)  §  61;   Cent.  Dig.  §§  93-99. 

29  Wait  v.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391;  Leonard  v.  Leon- 
ard, 14  Pick.  (Mass.)  2S0;  Rannels  v.  Gerner,  80  Mo.  474;  Fitzhugh  v.  Wil- 
cox, 12  Barb.  (N.  Y.)  235;  Bradbury  v.  Place  (Me.)  10  Atl.  461;  Mohr  v. 
Tulip,  40  Wis.  60 ;  Griswold  v.  Butler,  3  Conn.  227.  Where  the  guardian  was 
discharged  as  being  an  unsuitable  person,  and  no  other  guardian  was  ap- 
pointed, the  decree  adjudging  the  ward  insane  was  not  conclusive  as  to  hia 
incapacity  after  the  guardian's  discharge.  Willwerth  v.  Leonard,  156  Mass. 
277,  31  N.  E.  299.  See  ''Insane  Persons"  Deo.  Dig.  (Key-No.)  §  26;  Cent. 
Dig.  §  36. 

3  0  Knox  V.  Haug,  48  Minn.  58,  50  N.  W.  934;  Leinss  v.  Weiss,  33  Ind.  App. 
344,  71  N.  E.  254.  "His  discharge  as  cured  is  as  much  a  notice  of  the  fact 
that  he  is  sane  as  the  inquest  and  admission  to  the  asylum  is  notice  of  his 
insanity."  Henley,  J.,  in  Leinss  v.  Weiss,  supra.  See  "Insane  Persons,"  Dec. 
Dig.  (Key-No.)  §  26;    Cent.  Dig.  %  36.  - 

31  As  to  this,  see  Mott  v.  Mott,  49  N.  J.  Eq.  192,  22  Atl.  997;  Hart  v.  Dea- 
mer,  6  Wend.  (N.  Y.)  497;  Parker  v.  Davis,  53  N.  C.  4G0;  Hopson  v.  Boyd, 
6  B.  Mon.  (Ky.)  290;    Snook  v.  Watts,  11  Beav.  105;    In  re  Gangwere's  Es- 


§    117)  INSANE   PERSONS  229 

Ignorance  and  Good  FaitJi  of  the  Other  Party 

In  some  states  it  is  held  that  the  contract  of  an  insane  person  may 
be  avoided  by  him,  though  it  is  fair  and  reasonable,  and  though  it 
was  entered  into  by  the  other  party  in  perfect  good  faith,  and  in  ig- 
norance of  his  infirmity. ^^  "The  fairness  of  the  defendant's  con- 
duct," it  was  said  in  a  leading  Massachusetts  case,  "cannot  supply 
the  plaintiflF's  want  of  capacity."  " 

The  weight  of  authority  in  this  country,  however,  is  in  favor  of 
the  doctrine  that,  if  the  sane  party  did  not  know,  or  have  reasonable 
cause  to  know,  of  the  other's  insanity,  and  acted  in  good  faith,  and 
the  contract  was  fair,  and  has  been  so  far  executed  that  the  parties 
cannot  be  placed  in  statu  quo,  it  cannot  be  avoided.^*  In  Molton  v. 
Camroux,  a  leading  English  case,  a  lunatic  had  purchased  annuities 
of  a  society,  paid  the  money,  and  died,  whereupon  his  administra- 
trix sued  the  society  to  recover  back  the  money  on  the  ground  that 
the  contract  was  void.  The  jury  found  that  at  the  time  of  the  con- 
tract the  deceased  was  insane,  but  that  there  was  nothing  to  indi- 
cate this  to  the  defendant,  and  that  the  transaction  was  in  good 
faith.  It  was  held  that  the  money  could  not  be  recovered.  "The 
modern  cases  show,"  it  was  said,  "that  when  that  state  of  mind  was 
unknown  to  the  other  contracting  party,  and  no  advantage  was 
taken  of  the  lunatic,  the  defense  cannot  prevail,  especially  where 
the  contract  is  not  merely  executory,  but  executed  in  whole  or  in 
part,  and   the   parties  cannot  be  restored   to  their  original   posi- 

tate,  14  Pa.  417,  53  Am.  Dec.  554;  Topeka  Water  Supply  Co.  v.  Root,  56  Kan. 
187.  42  Pac.  715 ;  Lower  v.  Schumacher,  61  Kan.  625.  60  Pac.  538 ;  Stitzel  v. 
Farley,  148  111.  App.  635  (holding  contract  binding  if  made  during  a  lucid 
interval).  See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §§  26,  13;  Cent.  Dig  §§ 
S6,  1S6. 

8  2  Seaver  v.  Phelps,  11  Pick.  (Mass.)  304,  22  Am.  Dec.  372;  Gibson  v.  So- 
per,  6  Gray,  279,  66  Am.  Dec.  414  ;  HO  VET  v.  HOB  SON,  53  Me.  451,  89  Am. 
Dec.  705,  Throckmorton.  Cas.  Contracts,  149;  Fitzgerald  v.  Reed,  9  Smedes 
&  M.  (Miss.)  94 ;  Sullivan  v.  Flynn,  20  D.  C.  396 ;  Brigham  v.  Fayerweather, 
144  Mass.  52,  10  N.  E.  735 ;  Orr  v.  Mortgage  Co.,  107  Ga.  499,  33  S.  E.  70S ; 
Dewey  v.  Allgire,  37  Neb.  6,  55  N.  W.  276,  40  Am.  St  Rep.  463;  Wager  v! 
Wagoner,  53  Neb.  511,  73  N.  W.  937.  See  "fnsane  Persons,"  Dec  Dig.  {Key- 
No.)  §  73;    Cent.  Dig.  §  125. 

as  Seaver  v.  Phelps,  supra.  See  "Insane  Persons,"  Dec.  Dig.  {Key-No.)  §§ 
61,  13;   Gent.  Dig.  §§  98,  99,  125. 

3*  But  if  the  other  party  did  not  act  in  good  faith  or  had  reasonable 
ground  to  believe  the  insane  person  incompetent,  the  contract  may  be  avoided, 
although  the  consideration  cannot  he  returned.  Smith's  Committee  v.  For- 
Bvthe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034.  Knowledge  that  a  person  is  an 
invalid  and  cannot  write  with  his  own  hand  does  not  of  itself  constitute  no- 
tice of  unsoundness.  Groff  v.  Stitzer,  77  N.  J.  Eq.  260.  77  Atl.  40.  ^'ce  "In- 
sane Persons,"  Dec  Dig.  (Key-No.)  §  73;    Cent.  Dig.  §  125. 


230  CAPACITY   OP   PARTIES  (Ch.  6 

tion."  "  This  case  has  been  expressly  followed  and  applied  in  a 
number  of  our  courts,  while  others,  though  not  citing  it,  have  laid 
down  the  same  doctrine.^®  Under  this  rule  the  burden  of  proof  is 
on  the  insane  person  to  show  his  incapacity,  and  upon  the  other 
party  to  show  his  ignorance  of  such  incapacity  and  his  good  faith 
and  fair  dealing.*'^ 

The  distinctions  between  executory  and  executed  contracts  how- 
ever, suggested  in  Molton  v.  Camroux,  appear  to  have  been  repu- 
diated in  England,  and  in  that  country  the  more  recent  rule  appears 
to  be  that  the  contract  of  a  lunatic  is  binding  unless  the  other  party 
knew  of  his  condition,^* 

The  doctrine  thus  stated,  however,  is  not  to  be  applied  as  a  tech- 
nical rule  in  all  cases.  "The  cases  will  disclose,"  it  has  been  said, 
"that  one  dealing  with  an  insane  person,  and  not  knowing  his  con- 
dition, or  any  facts  to  put  him  on  his  guard,  will  be  protected  by  the 
courts  of  law  and  equity  against  such  person's  repudiating  his  con- 
tract on  the  ground  of  his  mental  incapacity.  But  the  rule  is  not  a 
technical  one,  to  be  relied  on  at  all  times  and  under  all  circumstanc- 
es. It  is  applied  in  each  case  only  to  prevent  a  wrong  being  done, 
and  is  based  on  the  principle  that  'the  law  will  not  permit  the  lu- 
natic's infirmity  to  be  made  an  instrument  of  fraud.'  "  " 

8  5  Molton  V.  Camroux,  2  Exch.  489,  4  Exch.  17.  See  "Insane  Persons," 
Dec.  Dig.  (Key-^o.)  §  IS;   Cent.  Dig.  §  125.  ■ 

3  8  Eaton  V.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716;  MUTUAL  LIFE 
INS.  CO.  V.  HUNT,  79  N.  Y.  541,  Throckmorton,  Cas.  Contracts,  153;  Ingra- 
laam  v.  Baldwin,  9  N.  Y.  45 ;  Boyer  v.  Berryman,  123  Ind.  451,  24  N.  E.  249 ; 
Lincoln  v.  Buekmaster,  32  Vt.  652;  Young  v.  Stevens,  48  N.  H.  136,  2  Am. 
Rep.  202,  97  Am.  Dec.  592;  Schaps  v.  Lebner,  54  Minn.  20S,  55  N.  W.  911; 
Gribben  v.  Maxwell,  34  Kan.  8,  7  Pac.  584,  55  Am.  Rep.  233 ;  Abbott  v.  Creal, 
56  Iowa,  175,  9  N.  W.  115;  Shoulters  v.  Allen,  51  Mich.  529,  16  N.  W.  888; 
Matthiessen  &  Weichers  Refining  Co.  v.  McMahon's  Adm'r,  38  N.  J.  Law, 
536;  Burnham  v.  Kidwell,  113  111.  425;  Scanlan  v.  Cobb,  85  111.  296;  North- 
western Ins.  Co.  V.  Blankenship,  94  Ind.  535,  48  Am.  Rep.  185;  McCormick 
V.  Littler,  85  111.  62,  28  Am.  Rep.  610;  Beals  v.  See,  10  Pa.  56,  49  Am.  Dec. 
573;  Riggan  v.  Green,  80  N.  C.  236,  30  Am.  Rep.  77;  Myers  v.  Knabe,  51 
Kan.  720,  33  Pac.  602 ;  Harrison  v.  Otley,  101  Iowa,  652,  70  N.  W.  724 ;  Flach 
V.  Gottschalk  Co.,  88  Md.  368,  41  Atl.  908,  42  L.  R.  A.  745,  71  Am.  St.  Rep. 
418;  McKenzie  v.  Donnell,  151  Mo.  431,  52  S.  W.  214;  Jamison  v.  Culligan, 
151  Mo.  410,  52  S.  W.  224.  If,  however,  the  lunatic  has  received  no  benefit 
under  the  contract,  it  has  been  said  that  he  can  recover  what  he  has  parted 
with,  notwithstanding  the  other  party's  good  faith.  Lincoln  v.  Buekmas- 
ter, 32  Vt  658;  Van  Patton  v.  Beals,  46  Iowa,  63.  Bee  "Insane  Persons" 
Dec.  Dig.  (Key-No.)  §  7S;    Cent.  Dig.  §  125. 

8T  ipock  V.  Atlantic  &  N.  C.  R.  Co.,  158  N.  C.  445,  74  S.  E.  352.  See  "In- 
sane Persons,"  Dec.  Dig.  (Key-No.)  §  4/    Cent.  Dig.  §  6. 

88  Imperial  Loan  Co.  v.  Stone  [1892]  1  Q.  B.  599.  See  Anson,  Cont.  (SW 
Ed.)  120.    See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  i  73;  Cent.  Dig.  §  125. 

89  Knowl ton's  Anson,  Cont  116,  note. 


§§    118-121)  EATIFICATION    AND   AVOIDANCE  231 


SAME— RATIFICATION  AND  AVOIDANCE 

118.  The  voidable  contract  of  a  person  non  compos  mentis  may  be 

ratified  or  avoided  by  himself  when  sane,  or  by  his  guard- 
ian during  insanity,  or  by  his  representatives  or  heirs  aft- 
er his  death. 

119.  The  right  to  disaJSirm  is  personal,  and  neither  the  other  party 

nor  third  persons  can  avoid  it. 

120.  In  a  few  jurisdictions,  although  the  other  party  did  not  know 

of  the  insanity  and  the  contract  was  fair,  the  consideration 
received  by  the  insane  person  need  not  be  returned  as  a 
condition  precedent  to  avoidance  if  he  is  unable  to  return  it. 

121.  The  contract  can  be  avoided  as  against  bona  fide  purchasers. 

The  voidable  contracts  of  a  person  non  compos  mentis  may  be 
ratified  or  disaffirmed  by  him  when  he  becomes  sane,  or  during  a 
lucid  interval ;  *"  or,  during  the  continuance  of  his  infirmity,  by  his 
committee  or  guardian;  *^  or,  after  his  death,  by  his  personal  repre- 
sentative,*^ or  his  heirs. *^  The  privilege  is  personal  to  the  insane 
person,  or  those  who  thus  represent  him ;  and  neither  the  other 
party  to  the  contract  nor  third  persons  can  avoid  it.**  Ratification 
or  disaffirmance  need  not  be  in  express  words,  but  may  be  by  con- 
duct, as  in  the  case  of  ratification  or  disaffirmance  by  a  person  of  a 

*o  Allis  V.  Billings,  6  Mete.  (Mass.)  416,  39  Am.  Dec.  744;  Gibson  v.  Soper, 
6  Gray  (Mass.)  279,  66  Am.  Dec.  414;  Arnold  v.  Iron  Works,  1  Gray  (Mass.) 
434 ;  Turner  v.  Rusk,  53  Md.  65.  See  "Insane  Persons"  Dec.  Dig.  (Key-No.) 
§  79;  Cent.  Dig.  §§  ISS,  IJ,!. 

41  Moore  v.  Hershey,  90  Pa.  196;  Halley  v.  Troester,  72  Mo.  73;  McGlain 
V.  Davis,  77  Ind.  419.  See  "Insane  Persons,"  Dec.  Dig.  {Key-No.)  §  79;  Cent. 
Dig.  §§  138,  lU. 

4  2  Beverley's  Case,  4  Coke,  123b;  Campbell  v.  Kuhn,  45  Mich.  513,  8  N. 
W.  523,  40  Am.  Rep.  479;  ScbufC  v.  Ransom,  79  Ind.  458;  Orr  v.  Mortgage 
Co.,  107  Ga.  499,  33  S.  E.  708.  See  "Insane  Persons,"  Dec.  Dig.  {Key-No.)  § 
79;  Cent.  Dig.  §§  138,  141. 

43  HOVEY  V.  HOBSON,  53  Me.  451,  89  Am.  Dec.  705,  Throckmorton,  Cas. 
Contracts,  140 ;  Allis  v.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744 ;  Scliuff 
V.  Ransom,  79  Ind.  458.  See  "Insane  Persons,"  Dec.  Dig.  {Key-No.)  §§  67,  79; 
Cent.  Dig.  §§  103,  138,  lU. 

4  4  Carrier  v.  Sears,  4  Allen  (Mass.)  336,  81  Am.  Dec.  707;  Allen  v.  Berry- 
hill,  27  Iowa.  T,M.  1  Am.  Bep.  .WO;  ante.  p.  22S.  note  28.  Contra.  Burke 
V.  Allen,  29  N.  H.  106,  61  Am.  Dec.  642.  Sureties  are  liable  on  a  note  execirt- 
ed  by  an  Insane  person.  Lee  v.  YandoU,  69  Tex.  34,  6  S.  W.  665.  Only  privies 
in  blood  or  legal  representatives  can  avoid.  Hunt  v.  Rabitoay,  125  Mich. 
137,  84  N.  W.  59,  84  Am.  St.  Rep.  563.  Bee  "Insane  Persona,"  Deo.  Dig.  {Key- 
No.)  I  79;  Cent.  Dig.  Si  138.  Ihl. 


232  CAPACITY   OF  PARTIES  (Ch.  6 

contract  made  during  infancy."    And  a  contract  once  duly  ratified 
may  not  afterwards  be  disaffirmed.** 

Return  of  Consideration  on  Avoidance 

In  those  jurisdictions  where  an  insane  person's  contract  is  void- 
able, whether  it  is  executed  or  not,  and  whether  or  not  the  other 
party  acted  in  good  faith  and  in  ignorance  of  his  infirmity,  a  person 
IS  not  required  to  restore,  or  offer  to  restore,  the  consideration  re- 
ceived by  him  as  a  condition  precedent  to  the  avoidance  of  a  con- 
tract made  by  him  while  insane.  "If  the  law  required  restoration  of 
the  price  as  a  condition  precedent  to  the  recovery  of  the  estate,  that 
would  be  done  indirectly  which  the  law  does  not  permit  to  be  done 
directly,  and  the  great  purpose  of  the  law  in  avoiding  such  con- 
tracts— the  protection  of  those  who  cannot  protect  themselves — 
defeated."  *^ 

As  we  have  already  seen,  however,  most  courts  do  not  allow  an 
insane  person  to  avoid  his  contracts  where  the  other  party  acted  in 
good  faith,  and  in  ignorance  of  his  insanity,  and  cannot  be  placed 
in  statu  quo.  Where  this  doctrine  prevails,  if  the  contract  was 
made  in  good  faith  and  without  knowledge  of  the  insanity,  the  right 
to  avoid  is  conditional  on  return  of  the  consideration.** 

Avoidance  as  against  Third  Persons 

The  fact  that  third  persons  have  acquired  an  interest  under  the 
contract  of  a  person  non  compos  mentis,  in  good  faith,  for  value, 
and  without  notice  of  his  infirmity,  cannot  defeat  his  right  to  avoid 

*6  Gibson  v.  Soper,  6  Gray  (Mass.)  2&3,  66  Am.  Dec.  414;  Arnold  v.  Iron 
Works,  1  Gray  (Mass.)  434;  Whitcomb  v.  Hardy,  73  Minn.  285,  76  N.  W.  29. 
Cf.  Bea.sley  v.  Beasley,  ISO  111.  163,  54  N.  E.  187.  Disaffirmance  by  action  to 
avoid.  Hull  v.  Louth,  109  Ind.  315,  10  N.  E.  270,  58  Am.  Rep.  405 ;  Ashmead 
V.  Reynolds,  127  Ind.  441,  26  N.  E.  80.  Ratification  is  established  by  evidence 
of  conduct  which  can  reasonably  be  accounted  for  only  on  the  hypothesis 
that  he  had  chosen  to  recognize  the  contract  as  binding  upon  him  and  to  re-, 
tain  as  his  own  the  property  he  had  acquired  under  it.  Newman  v.  Taylor 
(Tex.  Civ.  App.)  122  S.  W.  425.  See  ''Insane  Persons,"  Dec.  Dig.  {Kep-Xo.) 
§  79;  Cent.  Dig.  §§  13S,  1J,1. 

4  6  Newman  v.  Taylor  (Tex.  Civ.  App.)  122  S.  W.  425.  See  "Insane  Persons," 
Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §§  ISS,  1J,1. 

47  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  66  Am.  Dec.  414.  See,  also,  HOVEY 
V.  IIOBSON,  53  Me.  453,  SO  Am.  Dec.  705,  Throckmorton,  Cas.  Contracts,  149. 
See  ''Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  79;  Cent.  Dig.  §  138. 

48  West  V.  Seaboard  Air  Line  Ry.,  151  N.  C.  231,  65  S.  E.  979  [cit  Clark  on 
Contracts  (2d  Ed.)  1S51.  And  see  cases  cited  supra,  note  36.  Contract  raay 
be  avoided  upon  return  of  the  consideration  notwithstanding  the  fairness 
of  the  other  party  and  his  want  of  notice  of  the  insanity.  Nutter  v.  Des 
Moines  Life  Ins.  Co.  (Iowa)  136  N.  W.  80L  See  "Insane  Persons,"  Dec  Dig. 
(Key-No.)  §  73;  Cent.  Dig.  §  125. 


§§  122-123)  Drunken  persons  233 

the  contract.**  This  rule  apphes  to  deeds^'  and  negotiable  instru- 
ments "  as  well  as  to  other  contracts,  and  it  applies  whether  the 
contract  be  regarded  as  void  or  merely  voidable.  To  protect  bona 
fide  purchasers  in  such  cases  would  be  to  withdraw  protection  from 
the  insane  person. 

DRUNKEN  PERSONS 

122.  A  contract  made  by  a  person  while  he  is  so  drunk  as  to  be  in- 

capable of  understanding  its  nature  and  effect  is  voidable 
at  his  option,  except  that — 

EXCEPTIONS — He  is  liable  on  contracts  created  by  law,  or 
quasi  contracts. 

123.  The  rules  as  to  ratification  and  avoidance  are  substantially  the 

same  as  in  the  case  of  infants  and  insane  persons,  except 
that  some  (but  not  all)  courts  hold  that  the  contract  can- 
not be  avoided  as  against  a  bona  fide  purchaser. 

The  modern  law  places  a  drunken  person,  in  respect  of  his  ca- 
pacity to  contract,  in  the  same  position  as  an  insane  person.''^  If 
his  drunkenness  is  so  excessive  as  to  render  him  incapable  of  com- 
prehending the  nature  and  effect  of  his  contract,  it  is  voidable  at 
his  option,  and  it  is  immaterial  that  his  drunkenness  was  voluntary, 
and  not  procured  through  the  circumvention  of  the  other  party." 
In  the  absence  of  fraud,  slight  intoxication  does  not  affect  the  va- 

49  HOVEY  V.  HOBSON,  53  Me.  451,  89  Am.  Dec.  705,  Throckmorton,  Cas. 
Contracts,  149 ;  Hull  v.  Louth,  109  Ind.  315,  10  N.  E.  270,  58  Am.  Rep.  405 ; 
Long  V.  Fox,  100  111.  43;  Rogers  v.  Blackwell,  49  Mich.  192,  13  N.  W.  512. 
See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  61;  Cent.  Dig.  §  94. 

50  HOVEY  V.  HOBSON,  supra;  Rogers  v.  Blackwell,  49  Mich.  192,  13  N.  W. 
512.  In  North  Carolina  it  is  held  that  the  deed  of  a  lunatic,  duly  recorded, 
cannot  be  avoided  as  against  bona  fide  purchasers.  Odom  v.  Riddick,  104  N. 
C.  515,  10  S.  E.  600,  7  L.  R.  A.  118,  17  Am.  St.  Rep.  686.  See  "Insane  Per- 
sons," Dec.  Dig.  (Key-No.)  §  61;  Cent.  Dig.  §  94. 

61  Sentance  v.  Pool,  3  C.  &  P.  1 ;  Anglo-Califomian  Bank  v.  Ames  (O.  C.) 
27  Fed.  727;  Wirebach's  Ex'r  v.  Bank,  97  Pa.  543,  39  Am.  Rep.  821;  McClain 
V.  Davis,  77  Ind.  419.  -See  "Insane  Persons,"  Dec.  Dig.  (Key-No.)  §  77;  Cent 
Dig.  §  131. 

5  2  For  history  of  the  doctrine  in  regard  to  drunkenness  as  ground  of  in- 
capacity to  contract,  see  Cameron-Barkley  Co.  v.  Thornton  Light  &  Power 
Co.,  138  N.  C.  365,  50  S.  E.  695,  107  Am.  St.  Rep.  532 ;  Wright  v.  Waller,  127 
Ala,  557,  29  South.  57,  54  L.  R.  A.  440  and  note.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  92;  Cent.  Dig.  §§  ^12,  U-i;  ''Drunkards,"  Dec.  Dig.  (Key-No  ) 
f  6;  Cent.  Dig.  §  7. 

68  BARRETT  v.  BUXTON,  2  Aikens  (Vt.)  167,  16  Am.  Dec.  691,  Tlirock- 
morton,  Cas.  Contracts,  155;  Carpenter  v.  Rodgers,  61  Mich.  384,  28  N.  W. 
156,  1  Am.   St.  Rep.  595;  Miller  ▼.  Flnley,  26  Mich.  254,   12  Am.   Rep.  SOU; 


234  CAPACITY  OF   PARTIES  (Ch.  6 

lidity  of  a  contract.  According  to  some  of  the  older  cases,  the  in- 
toxication must  be  so  excessive  as  utterly  to  deprive  the  party  of 
his  reason  and  understanding;^*  but  this  doctrine  has  been  very 
generally  repudiated  or  modified,  and  the  more  reasonable  one 
adopted  that  if  the  party  is  so  far  deprived  of  his  reason  and  un- 
derstanding as  to  render  him  incapable  of  understanding  the  nature 
and  consequences  of  his  contract,  it  is  sufficient.'*^ 

The  contract,  though  voidable  at  the  option  of  the  drunken  per- 
son, is  binding  on  the  other  party,  and  cannot  be  attacked  by  third 
persons.^®  By  the  w^eight  of  authority,  if  a  person  has  been  judi- 
cially declared  incapable  of  conducting  his  own  afifairs  by  reason 
of  habitual  drunkenness,  and  has  been  put  in  the  custody  and  un- 
der the  control  of  a  committee  or  guardian,  his  contracts  are  abso- 
lutely void."^^ 

Gore  V.  Gibson,  13  Mees.  &  W.  623;  Caulbins  v.  Fry,  35  Conn.  170;  Johns 
V.  Fritchey,  39  Md.  258;  Bush  v.  Breinig,  113  Pa.  310,  6  Atl.  86,  57  Am.  Rep. 
469;  Foss  v.  Hildreth,  10  Allen  (Mass.)  76;  Matthews  v.  Baxter,  L.  R.  8  Exch. 
132;  Shackelton  v.  Sebree,  86  111.  616;  Bates  v.  Ball,  72  111.  108;  Mansfield 
V.  Watson,  2  Iowa,  111 ;  Warnock  v.  Campbell,  25  N.  J.  Eq.  485 ;  French's 
Heirs  v.  French,  8  Ohio,  214,  31  Am.  Dec.  441 ;  Cummings  v.  Henry,  10  Ind. 
109;  Reynolds  v.  Waller's  Heirs,  1  Wash.  (Va.)  164;  Newell  v.  Fisher,  11 
Smedes  &  M.  (Miss.)  431,  49  Am.  Dec.  66;  Brqadwater  v.  Darne,  10  Mo.  277; 
Phelan  v.  Gardner,  43  Cal.  306 ;  Birmingham  Ry.,  Light  &  Power  Co.  v.  Hinton, 
158  Ala.  470,  48  South.  546  (mental  incapacity  resulting  from  administration 
of  drugs  and  opiates).  But  see  Reinskopf  v.  Rogge,  37  Ind.  207.  In  Hunter 
V.  Tolbard,  47  W.  Va.  258,  34  S.  E.  737,  it  is  held  that  the  contract  is  void. 
It  has  been  held  that  a  person  who,  when  sober,  agrees  to  .sign  a  contract, 
cannot  avail  himself  of  intoxication  at  the  time  of  signature  as  a  defense. 
Page  V.  Krekey,  63  Hun,  629,  17  N.  Y.  Supp.  764.  Cf.  Youn  v.  Lamont,  56 
Minn.  216.  57  N.   W.  478. 

5*  Johnson  v.  Phifer,  6  Neb.  401;  Harbison  v.  Lemon,  3  Blackf.  (Ind.)  51, 
23  Am.  Dec.  376;  Belcher  v.  Belcher,  10  Yerg.  (Tenn.)  121.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §  J,14. 

»o  J.  I.  Case  Threshing  Mach.  Co.  v.  Meyers,  78  Neb.  685,  111  N,  W.  602, 
9  L.  R,  A.  (N.  S.)  970.  Johnson  v.  Harmon,  94  U.  S.  371,  24  L.  Ed.  271 ; 
Cameron-Barkley  Co.  v.  Thornton  Light  &  Power  Co.,  138  N.  C.  365,  50  S. 
E.  695,  107  Am.  St  Rep.  532  [cit.  Clark  on  Contracts  (2d  Ed.)  186];  Van 
Wyck  V.  Brasher,  81  N.  Y.  260;  Conley  v.  Nailor,  118  U.  S.  127,  6  Sup.  Ct. 
1001,  30  L.  Ed.  112;  Willcox  v.  Jackson,  51  Iowa,  208,  1  N.  W.  513;  Van 
Horn  V.  Keenan,  28  111.  445;  Peck  v.  Cary,  27  N.  Y.  9,  84  Am.  Dec.  220; 
Wright  V.  Waller,  127  Ala.  557,  29  South.  57,  54  L.  R.  A.  440  and  note  [quot. 
Clark  on  Contracts  (1st  Ed.)  pp.  274,  275].  And  see  cases  cited  in  note. 
See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  92;  Cent.  Dig.  §  414. 

66  Matthews  v.  Baxter,  L.  R.  8  E^xch.  132;  Eaton's  Adm'r  v.  Perry,  29  Mo. 
96.    See  "Drunkards,"  Dec.  Dig.  (Key-No.)  §  6;  Cent.  Dig.  §  7. 

37  Wadsworth  v.  Sharpsteen,  8  N.  Y.  388,  59  Am.  Dec.  499;  Philadelphia 
Trust,  Safe  &  Deposit  Ins.  Co.  v.  Allison,  108  Me.  326,  80  Atl.  833,  39  L.  R.  A. 
(N.  S.)  39;  Ralph  v.  Taylor,  33  R.  L  503,  82  Atl.  279.    This  is  true  even  of  a 


§§    122-123)  DRUNKEN   PERSONS  235 

A  person  who  was  drunk,  but  not  under  guardianship,  when  he 
entered  into  a  contract,  may  either  avoid  or  ratify  it  when  sober  ;°" 
and  ratification  or  disaffirmance  may  be  by  conduct  showing  an  in- 
tention to  ratify  or  to  avoid  it,  as  by  retention  of  the  consideration, 
after  becoming  sober,  or  failure  to  disaffirm  for  an  unreasonable 
time."*  Having  ratified  the  contract,  he  cannot  retract  and  avoid 
it.®°  On  avoidance  he  must  return  or  offer  to  return  the  considera- 
tion received  by  him,*^  though,  if  the  consideration  were  wasted 
before  becoming  sober,  this  would  probably  not  be  required. ^^ 

A  drunken  person  is  liable  on  contracts  created  by  law,  or  quasi 
contracts,  and  is  liable  for  necessaries  furnished  him.®' 

As  to  whether  drunkenness  is  a  defense  against  persons  in  good 
faith  acquiring  rights  for  value  under  the  contract, — as,  for  in- 
stance, against  the  bona  fide  holder  of  a  negotiable  instrument,— 
the  authorities  are  conflicting.  Some  courts  hold  that  total,  but 
not  partial,  drunkenness,  is  a  defense,®*  but,  by  the  decided  weight 
of  authority,  not  even  total  drunkenness  is  a  defense  against  st.  hold- 
er in  due  course  of  a  negotiable  instrument.®' 

negotiable  Instrument  In  the  hands  of  a  bona  fide  purchaser  for  value.  Wads- 
worth  V.  Sharpsteen,  supra.  This  does  not  apply  to  contracts  for  necessaries. 
McCrilUs  V.  Bartlett,  8  N.  H.  569;  nor  to  a  contract  made  before  the  ap- 
pointment of  the  committee.  Appeal  of  Donehoo  (Pa.)  15  Atl.  924.  See 
"Drunkards,"  Deo.  Dig.  {Key-No.)  §  6;  Cent.  Dig.  §  7. 

6  8  See  cases  cited  in  note  53,  supra.  It  may  be  avoided  by  his  personal 
representatives.  Wigglesvrorth  v.  Steers,  1  Hen.  &  M.  (Va.)  70,  3  Am.  Dec. 
602.     See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §  412. 

59  Williams  v.  Inabnet,  1  Bailey  (S.  C.)  343;  Reinskopf  v.  Rogge,  37  Ind. 
207;  Smith  v.  Williamson,  8  Utah,  219,  30  Pac.  753;  Mansfield  v.  Watson,  2 
Iowa,  111.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  92;  Cent.  Dig.  §  412. 

60  Matthews  v.  Baxter,  L.  R.  8  Exch.  132;  Joest  v,  Williams,  42  Ind.  565, 
13  Am.  Rep.  377.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  92,  97;  Cent.  Dig. 
§§  412,  US. 

61  Joest  V.  Williams,  42  Ind.  565,  13  Am.  Rep.  377;  Birmingham  Ry.,  Light  & 
Power  Co.  v.  Hinton,  158  Ala.  470,  48  South.  546.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §§  92,  97;  Cent.  Dig.  §§  412,  442-446. 

62  Thackrah  v.  Haas,  119  U.  S.  499,  7  Sup.  Ct.  311.  30  L.  Ed.  486.  See 
"Contractus,"  Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  4I,2-44G ;  "Cancellation 
of  Instruments,"  Dec.  Dig.  (Key-No.)  §  24;   Cent.  Dig.  §§  S3-S8. 

63  Gore  V.  Gibson,  13  Mees.  &  W.  023;  McCrillis  v.  Bartlett,  8  N.  H.  569. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  92;   Cent.  Dig.  §  412. 

64  Caulkins  v.  Fry,  35  Conn.  170.  See  "Bills  and  Notes,"  Dec.  Dig.  (Key- 
No.)  §  S66;   Cent.  Dig.  §§  945,  946. 

65  State  Bank  v.  McCoy,  09  Pa.  204,  8  Am.  Rep.  246;  McSparran  v,  Neeley, 
91  Pa.  17 ;  Smith  v.  Williamson,  8  Utah,  219,  30  Pac.  753.  See  Norton,  Bills 
&  N.  (3d  Ed.)  232;  Miller  v.  Finley,  20  Mich.  249,  12  Am.  Rep.  300.  And  see 
Page  V.  Krekey,  137  N.  Y.  307,  33  N.  E.  311,  21  L.  R.  A.  409,  33  Am.  St.  Rop. 
731,  holding  tliat  a  guaranty  Is  enforceable  against  a  drunken  person  by  an 
Innocent  party  to  whom  it  is  addressed   and  who  has  acted  upon  it  to  his 


236  CAPACITY  OF  PARTIES  (Ch.  6 


MARRIED  WOMEN 

124.  At  common  law,  as  a  rule,  a  married  woman,  during  coverture, 
is  incapable  of  contracting,  and  can  incur  no  contractual 
obligation. 

EXCEPTIONS  AT  COMMON  LAW— (a)  If  the  husband   is 
civilly  dead, 
(b)   If  the  husband  has  deserted  his  wife,  and  left  the  state. 

EXCEPTIONS  IN  EQUITY— (c)  In  equity  a  married  woman 
may  have  a  separate  estate,  and  contract  in  reference 
thereto  as  a  feme  sole. 

•  EXCEPTIONS  BY  STATUTE— (d)  In  most  jurisdictions,  the 
common-law  disabilities  of  married  women  have  been  vir- 
tually removed  by  statute. 

At  common  law,  as  a  rule,  a  married  woman  is  without  capacity 
to  enter  into  a  valid  contract.  Her  contracts  are  absolutely  void.®* 
It  makes  no  difference  whether  she  is  living  with  her  husband  or 
not.®^  An  agreement  of  separation,  for  instance,  by  which  the  hus- 
band has  secured  to  his  wife  a  separate  maintenance,  it  is  said,  can- 
not change  their  legal  relationship  so  as  to  render  her  liable  on  her 
contracts;'*  nor  can  the  fact  that  a  wife  has  deserted  her  husband. 

prejudice.  See  "Bills  and  Notes,"  Dec.  Dig.  (Key-No.)  §  66;  Cent.  Dig.  §§ 
945,  91,6. 

« 6  Jackson  v.  Vanderheyden,  17  Johns.  (N.  Y.)  167,  8  Am.  Dec.  378;  Mar- 
tin V.  Dwelly,  6  Wend.  (X.  Y.)  0,  21  Am.  Dec.  245;  Smith  v.  Ploraer,  15 
•East,  G07 ;  Manby  v.  Scott,  2  Smith,  Lead.  Cas.  .375 ;  Macliinley  v.  McGregor, 
3  Whart  (Pa.)  369,  31  Am.  Dec.  522;  Tracy  v.  Keith,  11  Allen  (Mass.)  214-; 
Morris  v.  Norfolk,  1  Taunt.  212 ;  INIusick  v.  Dodson,  76  Mo.  624.  43  Am.  Rep. 
780 ;  Dobbin  v.  Hubbard,  17  Ark.  189,  65  Am.  Dec.  425 ;  Palmer  v.  Oakley,  2 
Doug.  (Mich.)  433,  47  Am.  Dec.  41;  HoUis  v.  Francois,  5  Tex.  195,  51  Am. 
Dec.  760;  Stevens  r.  Parish,  29  Ind.  260,  95  Am.  Dec.  636;  Burton  v. 
Marshall,  4  Gill  (Md.)  487,  45  Am.  Dec.  171 ;  Hayrvard  v.  Barker,  52  Vt  429, 
36  Am.  Rep.  762 ;  Porterfield  v.  Butler,  47  Miss.  165,  12  Am.  Reii.  329 ;  Cald- 
well V.  Walters,  18  Pa.  79,  55  Am.  Dec.  592 ;  Pond  v.  Carpenter,  12  Minn. 
430  (Gil.  315)  ;  Farrar  v.  Bessey,  24  Vt.  89 ;  Howe  v.  Wildes,  34  Me.  566 ; 
Young  V,  Paul,  10  N.  J.  Eq.  404,  64  Am.  Dec.  456 ;  Tucker  v.  Cocke,  32  Miss. 
184;  Thompson  v.  Warren,  8  B.  Mon.  (Ky.)  488.  And  see  cases  cited  in 
Ewell,  Lead.  Cas.  312,  See  "Husband  and  Wife,"  Dec.  Dig.  (Kaj-No.)  §  79; 
Cent.  Dig.  §§  317-323. 

87  Llarris  v.  Taylor,  3  Sneed  (Tenn.)  536,  67  Am.  Dec.  576.  Contra:  Love 
V.  Moynehan,  16  111.  277,  63  Am.  Dec.  306.  See  "Hmband  and  Wife,"  Dec. 
Dig.  {Kev-^'o.)  §§  65,  79;   Cent.  Dig.  §§  287,  2S8,  317-323. 

68  Marshall  v.  Rutton,  8  Term  R.  545.  See  "Husband  and  Wife"  Dec.  Dig. 
{Key-No.)  %%  65-67;    Cent.  Dig.  §§  285-2S9. 


§    124)  MARRIED    WOMEN  237 

and  is  living  in  adultery,  render  her  liable.*'  Even  a  divorce  a 
niensa  et  thdro  does  not  give  a  woman  power  to  bind  herself  by- 
contract  at  common  law/**  though  this  is  very  generally  changed  by 
statute.  The  contracts  of  a  married  woman,  being  absolutely 
void,  may  not  be  rendered  valid  by  ratification  by  her  after  the  re- 
moval of  the  disability  of  coverture,  as  by  the  death  of  her  hus- 
band "  or  by  statute/^ 

As  a  rule,  a  married  woman  is  liable  for  her  torts,  including  her 
frauds,  and  may  be  sued  in  respect  of  such  acts,  jointly  with  her 
husband,  or  separately  if  she  survives  him ;  but,  as  in  the  case  of  in- 
fants, she  cannot  even  be  sued  for  her  fraud  where  it  is  directly 
connected  with  her  contract,  and  is  part  of  the  same  transaction, 
though  it  is  otherwise  if  the  fraud  is  not  connected  with  her  con- 
tract.^^  False  representations  by  a  married  woman  that  she  is  un- 
married, or  a  widow,  to  induce  a  person  to  contract  with  her,  will 
not  estop  her  from  pleading  her  coverture  when  sued  upon  the 
contract,  though,  like  an  infant  under  similar  circumstances,  she 
would  no  doubt  be  liable  in  an  action  for  deceit. ''* 
Exceptions — At  Common  Law 

At  common  law  a  married  woman  may  acquire  contractual  rights 
by  reason  of  personal  services  rendered  by  her,  or  by  reason  of  the 
assignment  or  execution  to  her  of  a  chose  in  action,  such  as  a  bond 
or  note.^'  The  husband  may  reduce  to  his  possession  the  rights 
so  accruing  to  his  wife;  but,  unless  he  does  this  by  some  act  in- 
dicating an  intention  to  deal  with  them  as  his  own,  they  do  not 

6»  Meyer  v.  Ha  worth,  8  Adol.  &  E.  4G7.  See  "Husband  and  Wife;  Dec. 
Dig.  {Kcy-^o.)  §§  65-61 ;    Cent.  Din.  §§  285-289. 

ToFaithorae  v.  Blaquire,  6  Maule  &  S.  73 ;  Lewis  v.  Lee,  3  Barn.  &  C. 
291.  Contra,  Dean  v.  Richmond,  5  Pick.  (Mass.)  461;  Pierce  v.  Burnham. 
4  Mete.  (Mass.)  303.  See  "Husband  and  Wife,"  Dec.  Dig.  (Key-No.)  §§  65-67; 
Cent.  Dig.  §§  2S5-2S9. 

71  Virginia-Carolina  Chemical  Co.  v.  Fisher,  58  Fla,  377,  50  South.  504. 
See  "Husiand  and  Wife,"  Dec.  Dig.  (Key-No.)  §  89;  Gent.  Dig.  §§  S58-S61; 
"Contracts,"  Cent.  Dig.  §§  S65,  S66. 

72  Thompson  v.  Minnich,'227  111.  430,  81  N.  E.  336;  Warner  v.  Warner,  235 
111.  448,  85  N.  B.  630 ;  Lyell  v.  Walbach,  113  Md.  574,  77  Atl.  1111,  33  L,  R. 
A,  (N,  S.)  741.  See  "Husband  and  Wife."  Dec.  Dig.  (Key-No.)  §  89;  Cent 
Dig.  §§  358-S61. 

7  3  l^ake,  Cout.  235;  Liverpool  Adelphi  Loan  Ass'n  v.  Fairhurstl,  9  Exch. 
422;  Wright  v.  Leonard,  11  C.  B.  (N.  S.)  258.  See  "Husband  and  Wife,"  Dec. 
Dig.  (Key-No.)  §  102;    Cent.  Dig.  §§  S78-S80. 

7  4  Cannam  v.  Farmer,  3  Exch.  G'JS ;  Liverpool  Adelphi  Loan  Ass'n  v.  Fair- 
hurst,  9  Exch.  422;  Wright  v.  Leonard,  11  C.  B.  (N.  S.)  2r)8.  See  "Husband 
and  Wife,"  Dec.  Dig.  (Key-No.)  §  102;   Cent.  Dig.  §§  S7S-SS0. 

75  Stevens  v.  Beals,  10  Cush.  (Mass.)  201,  57  Am.  Dee.  108;  Cobb  v.  Duke, 
56  Miss.  60,  72  Am.  Dec.  157.  See  "Husband  and  Wife,"  Dec.  Dig.  (Key-No.) 
I  7.9;    Cent.  Dig.  |§  317-329. 


238  CAPACITY   OF   PARTIES  (Ch.  6 

pass,  like  other  personalty  of  the  wife,  into  the  estate  of  the  hus- 
band, but  survive  to  the  wife  if  she  outlives  him,  or  pass  to  her 
personal  representatives  if  she  dies  in  his  lifetime. 

The  wife  of  a  man  who  was  civilly  dead  by  reason  of  his  being 
under  conviction  of  a  felony  had  the  same  capacity  to  contract  as 
a  feme  sole.^®  The  old  common-law  doctrine  of  civil  death  from 
conviction  of  a  felony,  however,  is  not  recognized  in  this  country ; 
but  there  are,  in  some  states,  statutes  declaring  that  a  man  who  is 
under  a  sentence  of  imprisonment  in  the  penitentiary  for  life  shall 
be  deemed  civilly  dead.^^ 

Where,  however,  a  husband  deserts  his  wife  absolutely  and  com- 
pletely, and  leaves  the  state,  it  is  generally  held  in  this  country  that 
the  wife  may  contract  and  sue  and  be  sued  as  a  feme  sole.^*  At 
common  law,  however,  such  desertion  must  be  more  than  a  mere 
separation  of  the  husband  from  his  wife — it  must  be  a  voluntary 
abandonment  of  her,  with  intent  to  renounce  the  marital  relation, 
so  far  as  he  can  do  so,  and  to  leave  his  wife  to  act  as  a  feme  sole/' 

Same — In  Equity 

In  equity  a  married  woman  may  have  property  settled  upon  her 
to  her  separate  use,  in  which  case  she  may  dispose  of  it  in  the  same 
manner  as  if  she  were  a  feme  sole.  In  the  exercise  of  this  right,  she 
may  charge  it  with  the  liability  to  satisfy  contracts  made  by  her ;  and 
an  engagement  or  security  entered  into  by  her,  showing  an  inten- 
tion to  charge  her  separate  property,  will  have  that  efifect."     As 

T«Co.  Litt.  132b;  Hatchett  v.  Baddeley,  2  W.  Bl.  1079,  1082;  Carrol  v. 
Blencow,  4  Esp.  27.  Civil  death  arose  formerly  in  England  also  from  out- 
lawry. As  to  other  exceptions  not  material  in  this  country,  see  Anson,  Cont. 
(8th  Ed.)  122;  Pollock,  Cont.  (3d  Ed.)  SO.  As  to  agreements  of  separation, 
see  Tiffany,  Pers.  &  Dom.  Rel.  108.  See  "Eusband  and  Wife,"  Dec.  Dig. 
(Eev-Wo.)  §§  65-67;    Cent.  Dig.  §§  2S5-289. 

7  7  j^ee  ante,  p.  184. 

T8  GREGORY  V.  PIERCE,  4  Metc.  (Mass.)  478,  Throckmorton  Cas.  Con- 
tracts, 159;  Mead  v.  Hughes'  Adm'r,  15  Ala.  141,  1  Am.  Rep.  123;  Krebs  v. 
O'Grady,  23  Ala.  720,  58  Am.  Dec.  312;  Cheek  v.  Bellows,  17  Tex.  613,  67 
Am.  Dec.  680.  See  Rogers  v,  Phillips,  8  Ark.  306,  47  Am.  Dea  727.  See 
Metc  Cont.  98  et  seq.  A  married  woman  whose  husband  is  an  alien,  and 
has  never  been  in  the  United  States,  is  liable  on  her  contracts.  Levi  v. 
Marsha,  122  N.  C.  505,  29  S.  E.  832.  See  "Husband  and  Wife,"  Dec.  Dig. 
{Key-No.)  §§  65-67;   Cent.  Dig.  §§  2S5-2S9. 

7  9  GREGORY  V.  PIERCE,  supra.  See  "Eusband  and  Wife,"  Dec.  Dig. 
(Key-No.)  §§  65-67;    Cont.  Dig.  §§  285-289. 

8  0  See  Hulme  v.  Tenant,  1  Brown,  Ch.  16;  Shattock  v.  Shattock,  L.  R.  2 
Eq.  182;  Jaques  v.  Methodist  Church,  17  Johns.  (N-.  Y.)  549,  8  Am.  Dec,  447; 
Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  245;  Hollis  v.  Francois, 
5  Tex.  195,  51  Am.  Dec.  700 ;  Bradford  v.  Greenway,  17  Ala.  797,  52  Am.  Ded 
203;  Dobbin  v.  Hubbard,  17  Ark.  189,  65  Am.  Dec.  425;  Rogers  v.  Ward, 
8  Allen   (Mass.)   387,  85  Am.  Dec.  710;     Smith  r.  Thompson,  2  MacArthur 


§    124)  MARRIED   WOMEN  239 

said  in  an  English  case :  "Courts  of  equity  have,  through  the  me- 
dium of  trusts,  created  for  married  women  rights  and  interests  in 
property,  both  real  and  personal,  separate  and  independent  of  their 
husbands.  To  the  extent  of  the  rights  and  interests  thus  created  a 
married  woman  has,  in  courts  of  equity,  power  to  alienate,  to  con- 
tract, to  enjoy.  She  is  considered  a  feme  sole  in  respect  of  proper- 
ty thus  settled  or  secured  to  her  separate  use."  "  It  is  presumed  in 
general  that  a  contract  or  engagement  made  by  a  married  woman 
in  writing  imports  an  intention  to  charge  her  separate  estate,  other- 
wise the  writing  would  have  no  meaning.  If  not  in  writing,  it 
must  be  proved  that  the  engagement  was  entered  into  with  such 
an  intention."  Under  this  rule,  bonds,  bills  of  exchange,  and 
promissory  notes  of  a  married  woman  are  presumptively  payable 
out  of  her  separate  estate.^*  It  is  very  generally  held  that,  where 
a  debt  contracted  by  a  married  woman  is  for  the  benefit  of  her 
separate  estate,  it  will  be  chargeable  in  equity  for  the  payment 
thereof,  without  regard  to  her  intention.^* 

There  are  some  limitations  on  the  power  of  a  married  woman  in 
respect  to  her  separate  property  which  should   be  noticed.     She 

(D.  C.)  291.  29  Am.  Rep.  621;  Priest  v.  Cone,  51  Vt.  49.5,  31  Am.  Rep.  695; 
Willard  v.  Eastham,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Johnson  v.  Cum- 
mins, 16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Burch  v.  Breckinridge,  16  B.  Mon. 
(Ky.)  482,  63  Am.  Dec.  5-53;  Kantrowitz  v.  Prather,  31  Ind.  92,  99  Am.  Dec. 
587 ;  Phillips  v.  Graves,  20  Ohio  St.  371,  5  Am.  Rep.  675 ;  Baker  v.  Gregory, 
28  Ala.  544,  65  Am.  Dec.  366.  See  Tiffany,  Pers.  &  Dom.  Rel.  131  et  seq.  See 
"Husband  and  Wife,"  Dec.  Dig.  (Key-No.)  §  152;    Cent.  Dig.  §§  596-602. 

81  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494.  See  "Eushand  and  Wife," 
Dec.  Dig.  {Key -No.)  §  152;    Cent.  Dig.  §§  596-602. 

"Leake,  Cont  238;  Kantrowitz  v.  Prather,  31  Ind.  92,  99  Am.  Dec.  587; 
Burch  V.  Breckinridge,  16  B.  Mon.  (Ky.)  482,  63  Am.  Dec.  553;  Litton  v. 
Baldwin,  8  Humph.  (Tenn.)  209,  47  Am.  Dec.  605;  Johnson  v.  Cummins,  16 
N.  J.  Eq.  97,  84  Am.  Dec.  142.  See  "Husband  and  Wife,"  Dec.  Dig.  {Key-No.) 
§  16J,;   Cent.  Di^.  §§  6-il-6.',8. 

88Tullett  V.  Armstrong,  4  Beav.  319;  Phillips  t.  Graves,  20  Ohio  St.  371, 
5  Am.  Rep.  675;  Burch  v.  Breckinridge,  16  B.  Mon.  (Ky.)  482,  63  Am.  Dec. 
553 ;  Dobbin  v.  Hubbard,  17  Ark.  189,  65  Am.  Dec.  425 ;  Rogers  v.  Ward,  8 
Allen  (Mass.)  387,  85  Am.  Dec.  710.  See  "Husband  and  Wife,"  Dec.  Dig. 
(Key-No.)  §§  156,  16J,,  232;    Cent.  Dig.  §§  60S-622,  641-648,  844. 

84  Willard  v.  Eastham,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Rogers  v. 
Ward,  8  Allen  (Mass.)  387,  85  Am.  Dec,  710;  James  v.  Mayrant,  4  Desaus. 
Eq.  (S.  C.)  591,  6  Am.  Dec.  630;  Yale  v.  Dederer,  22  N,  Y.  450,  78  Am.  Dec. 
216;  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Dyett  v.  Coal 
Co.,  20  Wend.  (N.  Y.)  570,  32  Am.  Dec.  598;  Dale  v,  Robinson,  51  Vt  20,  31 
Am.  Rep.  0G9 ;  Patrick  v.  Littell,  36  Ohio  St.  79,  3S  Am.  Rep.  552 ;  McCor- 
mick  V.  Holbrook,  22  Iowa,  487,  92  Am.  Dec.  400.  Liability  for  medical  at- 
tendance and  funeral  expenses.  McClellan  v.  Filson,  44  Ohio  St.  l&i,  5  N.  E. 
861,  58  Am.  Rep.  814.  See  "Husband  and  Wife,"  Dec.  Dig.  (Key-No.)  %  162; 
Cent.  Dig.  §§  522,  596,  600,  614,  637-640. 


240 


CAPACITY   OF   PARTIES  (Ch.  6 


cannot  sue  or  be  sued  alone  in  respect  of  the  separate  estate.  She 
does  not  acquire  a  sort  of  equitable  status  of  capacity  to  contract 
debts  in  respect  of  her  separate  estate,  without  regard  to  when  it 
is  acquired.  She  can  only  bind  such  separate  estate  as  is  in  her 
possession  or  control  at  the  time  the  liabilities  accrue.  She  cannot 
bind  herself  nor  create  liabilities  in  excess  of  her  estate.  Her  cred- 
itor's remedy  is  not  against  her,  but  against  her  property." 

Same — Disability  Removed  by  Statute 

The  common  law  has  of  late  years  been  almost  universally  chang- 
ed by  statutes  both  in  this  country  and  in  England.  The  statutes 
vary  so  much  in  the  different  states  that  it  would  be  impracticable 
to  attempt  to  state  the  law  in  detail.  In  general,  however,  it  may 
be  said  that^by  the  statutes  married  women  have  been  given  power 
to  contract  as  if  femes  sole,  subject  to  certain  specified  exceptions, 
such  as  contracts  for  the  sale  or  conveyance  of  their  real  estate,  or 
as  surety  for  their  husbands. 


CORPORATIONS 

125.  A  corporation,  by  reason  of  its  artificial  nature,  can  only  con- 

tract through  a  duly-authorized  agent. 

126.  Formerly,  with  certain  exceptions,  it  could  only  contract  un- 

der its  corporate  seal;  but  now,  unless  restricted  by  its 
charter  or  by  statute,  it  may  contract  in  the  same  manner 
as  a  natural  person. 

127.  The  power  of  a  corporation  to  enter  into  a  contract  is  limited 

in  respect  of  the  subject-matter  only  by  its  charter  or  act 
of  incorporation  or  by  other  statutes  binding  on  it.  Ex- 
cept as  so  restricted,  it  has  the  implied  power  to  enter  in- 
to any  contract  which  is  reasonably  incidental  to  the  ac- 
complishment of  the  objects  for  which  it  is  created. 

128.  An  attempted  contract,  which  is  not  within  the  powers  of  a 

corporation,  is  said  to  be  ultra  vires,  and  in  many  jurisdic- 
tions is  held  to  be  void,  so  that  it  cannot  be  enforced ;  but 
in  other  jurisdictions  the  defense  of  ultra  vires  is  excluded 
when  the  contract  has  been  performed  by  the  party  seek- 
ing to  enforce  it,  and  it  would  be  inequitable  to  allow  the 
defense. 

»»Picard  v.  Hire,   5  Ch.   App.  277.     See  "Eusband  and  Wife,"  Dec.  Dig. 
{Kev-^'o.)  §  215;    Cent.  Dig.  §  78^. 


§§    125-128)  CORPORATIONS  241 

A  corporation  can  contract  only  by  means  of  an  agent.  It  "can- 
not act  in  its  own  person,  for  it  has  no  person."  ^®  It  cannot  act 
through  one  or  any  number  of  its  members,  merely  as  such,  for, 
though  they  compose  the  corporation,  they  are  not  the  corporation. 
It  must  act  through  an  agent  expressly  authorized  to  act  for  it.*^ 
Mode  of  Contracting — Seal 

It  was  formerly  the  rule,  subject  to  some  exceptions,  that  a  cor- 
poration could  manifest  its  intention  and  act  only  by  the  use  of 
its  corporate  seal;**  but  this  doctrine  is  no  longer  recognized  in 
this  country.  Unless  the  charter  or  act  of  incorporation  or  some 
statute  provides  otherwise,  it  need  only  use  a  seal  where  an  individ- 
ual would  be  required  to  use  one.  In  all  cases  where  it  is  not  ex- 
pressly so  restricted,  it  may,  like  a  natural  person,  contract  under 
seal,  or  by  writing  not  under  seal,  or  orally.*^  Like  a  natural  per- 
son, also,  it  can  ratify  any  contract  made  by  an  agent  which  it 
could  have  authorized  the  agent  to  make,®"  and  it  may  be  liable  on 
contracts  implied  as  a  fact  from  corporate  acts,^^  and  on  quasi  con- 
tractual obligations.®^ 

If  the  charter  or  act  of  incorporation,  or  any  other  statute,  ex- 
pressly prescribes  a  certain  mode  or  form  for  entering  into  con- 
tracts, as  is  frequently  the  case,  that  form  and  mode  must  be  strict- 

8  6  Per  rx)rd  Cairns,  in  Ferguson  v.  Wilson,  2  Ch.  99.  See  "Corporations," 
Dec.  Dig.  {Key-^o.)  §§  S9S,  406,  W ;  Cent.  Dig.  §§  1592-159J,,  161 1-161  i,  1786, 
1787,  1807. 

8  7  Anonymous,  12  Mod.  423;  Bank  of  Ireland  v.  Evans  Charities,  5  H.  L. 
Cas.  389.  See  "Corporations,"  Dec.  Dig.  {Key-l^'o.)  §§  S83,  ^06;  Cent.  Dig.  §§ 
1611-1611}. 

88  1  Bl.  Comm.  475;  Church  v.  Gas  Co.,  6  Adol.  &  E.  846.  See  "Corpora 
tions,"  Dec.  Dig.   {Key-lS'O.)  §  f75;    Cent.  Dig.  §§  1801-1803. 

89  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  3  L.  Ed.  351;  Bank  of 
United  States  v.  Dandridge,  12  Wheat.  64.  6  L.  Ed.  552;  Topping  v.  Bickford. 
4  Allen  (Mass.)  120;  Goodwin  v.  Screw  Co..  34  N.  H.  378;  Pixley  v.  Railroad 
Co.,  33  Cal.  183,  91  Am.  Dec.  623  ;  Regents  of  University  of  Michigan  v.  So- 
ciety. 12  Mich.  138 ;  Board  of  Education  of  Illinois  v.  Greenbaum,  39  111.  609 ; 
Mott  V.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550;  Trustees  of  Christian 
Church  of  Wolcott  v.  Johnson,  53  Ind.  273 ;  Clark,  Corp.  156.  See  "Corpora- 
tions," Dec.  Dig.    (Keg-No.)  §  455;    Cent.  Dig.  §§  1801-1803. 

soPeter.son  v.  Mayor,  etc.,  17  N.  Y.  4.50.  See  "Corporations,"  Dec.  Dig. 
(Kcy-Xo.)   §  Jf26;    Cent.  Dig.  §§  1596,  1702-1716. 

81  Proprietors  of  the  Canal  Bridge  v.  Gordon,  1  Pick.  (Mass.)  297.  11  Am. 
Dec.  170;  Bank  of  Colunjbia  v.  Patterson,  7  Cranch,  299,  3  L.  Ed.  351.  See 
"Corporations,"  Dec.  Dig.   (Eeij-Xo.)   §  451;    Cent.  Dig.  §  i7S7. 

92  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299.  3  L.  Ed.  351;  Hall  v. 
Mayor  of  Swansea.  5  Q.  B.  526;  Jefferys  v.  Gurr,  2  Barn.  &  Adol.  833;  Se.i- 
graves  v.  City  of  Alton.  13  111.  366;  Tru-'^tres  of  Cincinnati  Tp.  v.  Ogden,  5 
Ohio,  23.  See  "Corporations,'!  Dec.  Dig.  (Keg-No.)  §§  i}7,  451:  Cent.  Dio' U 
1786,  1787. 

CijlKk  Cont.(3d  Ed.)— 16 


242  ,  CAPACITY   OF   PARTIES  (Ch.  6 

ly  followed.®'     The  statutory  provision,  however,  must  be  man- 
datory, and  not  merely  directory.'* 

M^'hat  Contracts  are  Authorized 

The  power  of  a  corporation  to  enter  into  contracts  is  limited,  in 
respect  of  the  matter  of  the  contract,  by  the  charter  or  act  of  in- 
corporation; and  by  other  statutes  binding  upon  it.  Being  a  crea- 
ture of  the  legislature,  it  may  make  only  such  contracts  as  are  ex- 
pressly or  impliedly  authorized  by  the  legislature.®"  It  exists  for 
no  other  purpose,  and  has  no  greater  powers,  than  are  conferred  by 
its  creation. 

By  implication  a  corporation  is  given  power,  in  the  absence  of 
express  restriction  in  its  charter,  to  enter  into  any  contract  which  is 
necessary  and  usual  in  the  course  of  business,  or  reasonably,  inci- 
dent to  the  accomplishment  of  the  objects  for  which  it  was  cre- 
ated.®" 

To  borrow  money  for  carrying  on  its  business,  and  to  give  a 
mortgage  to  secure  its  debts,  to  receive  or  give  negotiable  paper,  to 
buy  and  sell  land,  are  all  acts  within  the  power  of  the  corporation 
if  it  is  acting  within  its  proper  sphere,  and  in  carrying  out  the  pur- 
poses for  which  it  was  incorporated;  but  not  otherwise.®^ 

Ultra  Vires  Contracts 

A  contract  made  by  a  corporation  ultra  vires — that  is,  beyond  the 
powers  of  the  corporation  executing  it — is  in  many  jurisdictions 
held  to  be  void,  so  that  no  action  can  be  brought  upon  it.®*  In  ac- 
cordance with  this  view,  the  contract  being  absolutely  void,  it  may 

93  Head  v.  Insurance  Co.,  2  Cranch,  127,  at  page  169,  2  L.  Ed.  229;  Bissell 
V.  Spring  Valley  Tp.,  110  U.  S.  1G2,  3  Sup.  Ct.  555,  28  L.  Ed.  105.  See  ''Cor- 
porations," Dec.  Dig.  (Key-No.)  §  452;    Cent.  Dig.  §§  1196-1805. 

94  Southern  Life  Ins.  &  Trust  Co.  v.  Lanier,  5  Fla.  110,  58  Am.  Dea  448 ; 
Witte  T.  Fishing  Co.,  2  Conn.  260;  Bulkley  v.  Same,  2  Conn.  252,  7  Am.  Dec. 
271.     See  "Co7-porations,"  Dec.  Dig.  (Key-No.)  §  Jf52;   Cent.  Dig.  §§  1796-1805. 

8  5  DOWNING  V.  MT.  WASHINGTON  ROAD  CO.,  40  N.  H.  230,  Throckmor- 
ton Cas.  Contracts,  161.  See  "Corporations"  Dec.  Dig.  (Key-No.)  §§  4^9,  1^50; 
Cent.  Dig.  §§  1786,  179S-1795. 

96  DOWNING  V.  MT.  WASHINGTON  ROAD  CO.,  supra;  Morville  v.  So- 
ciety, 123  Mass.  129,  25  Am.  Rep.  40;  Union  Bank  v.  Jacobs,  6  Humph.  (Tenn.) 
515;  London  &  N.  W.  Ry.  Co,  v.  Price,  11  Q.  B.  D.  485;  Simpson  v.  Hotel  Co., 
8  H.  L.  Cas.  712 ;  Ft  Worth  City  Co.  v.  Bridge  Co.,  151  U.  S.  294,  14  Sup.  Ct. 
339,  38  L.  Ed.  167.  See  "Corporations,"  Dec.  Dig.  (Key-No.)  §  447;  Cent.  Dig. 
S§  1786-1807. 

9T  Clark,  Corp   133  et  seq. 

98  DOWNING  V.  MT.  WASHINGTON  ROAD  CO.,  40  N.  H.  230,  Throck- 
morton Cas.  Contracts,  161 ;  East  Anglian  Rys.  Co.  v.  Railway  Co.,  11  C.  B. 
775 ;  Directors,  etc.,  of  Ashbury  Railway  Carriage  &  Iron  Co.  v.  Riche.  L.  R. 
7  H.  L.  653;  Pearce  v.  Railroad  Co.,  21  How.  441,  16  L.  Ed.  184;  Thomas  v. 
Railroad  Co.,  101  U.  S.  71,  25  L.  Ed.  950 ;  Central  Transp.  Co.  v.  Car  Co.,  139 


§§  125-128)  CORPORATIONS  243 

not  even  be  ratified."  In  many  states,  on  the  other  hand,  the  de- 
fense of  ultra  vires  is  in  such  cases  excluded,  whether  interposed  for 
or  against  the  corporation,  on  the  ground  of  an  equitable  estoppel, 
when  the  contract  has  been  wholly  or  partly  performed  on  the  part 
of  the  plaintiff,  and  it  would  be  inequitable  to  allow  the  defense.^"" 
And  as  a  rule,*  in  all  jurisdictions,  where  either  party  has  received 
benefits  under  the  contract  in  the  form  of  money,  property,  or  serv- 
ices, an  action  quasi  ex  contractu  may  be  maintained  to  recover 
it.^**^  A  discussion  of  the  law  of  corporations  in  relation  to  con- 
tracts is,  however,  beyond  the  scope  of  this  book.^°* 

U.  S.  24,  11  Sup.  Ct.  478,  35  L.  Ed.  55 ;  California  Nat.  Bank  v.  Kennedy,  167 
U.  S.  362,  17  Sup.  Ct.  831,  42  L.  Ed.  198.  See  "Corporations;'  Dec.  Dig.  {Key- 
A^o.)  §  .'tS7;   Cent.  Dig.  §§  189S-1898. 

99  DOWNING  V.  MT.  WASHINGTON  ROAD  CO.,  supra.  Bee  "Corpora- 
tions," Dec.  Dig.  (Key-No.)  §  4S7;  Cent.  Dig.  §§  1S93-1898. 

100  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  62,  20  Am.  Rep.  504;  Holmes  & 
Griggs  Mfg.  Co.  v.  Metal  Co.,  127  N.  Y.  252,  27  N.  E.  831,  24  Am.  St  Rep.  448; 
Denver  Fire  Ins.  Co.  v.  McClelland,  9  Colo.  11,  9  Pac.  771,  59  Am.  Rep.  134 ; 
Bradley  v.  Ballard,  55  111.  413,  8  Am.  Rep.  656 ;  Day  v.  Buggy  Co.,  57  Mich. 
151,  23  N.  W.  628,  58  Am.  Rep.  352 ;  Wright  v.  Hughes,  119  Ind.  324,  21  N. 
E.  907,  12  Am.  St.  Rep.  412;  Seymour  v.  Society,  54  Minn.  147,  55  N.  W.  907; 
Manchester  &  L.  R.  Co.  v.  Railroad  Co.,  66  N.  H.  100,  20  Atl.  383,  9  L.  R.  A. 
689,  49  Am.  St.  Rep.  582;  Union  Hardware  Co.  t.  Manufacturing  Co.,  58  Conn. 
219,  20  Atl.  455.  See  "Corporations;'  Dec.  Dig.  (Key-No.)  §  487;  Cent.  Dig.  §§ 
1893-1898. 

101  Day  V.  Buggy  Co.,  57  Mich.  146,  23  N.  W.  628,  58  Am.  Rep.  352;  Davis 
V.  Railroad  Co.,  131  Mass.  258,  41  Am.  Rep.  221 ;  Logan  County  Nat  Bank  v. 
Townsend,  139  U.  S.  67,  11  Sup.  Ct  496,  35  L.  Ed.  107 ;  Nashua  &  L.  R.  Corp. 
V.  Railroad  Corp.,  164  Mass.  222,  41  N.  E.  26S,  49  Am.  St.  Rep.  454 ;  Anthony 
V.  Machine  Co.,  16  R.  I.  571,  18  Atl.  176,  5  L.  R.  A.  575 ;  Moore  v.  Tanning  Co., 
60  Vt  459,  15  Atl.  114.  See  ''Corporations;'  Dec.  Dig.  (Key-No.)  §  -487;  Cent. 
Dig.  §§  1893-1898. 

102  See  Clark,  Corp.  170  et  seq. 


244  REALITY   OF  CONSENT  (Ch.  7 

CHAPTER  VII 
REALITY  OF  CONSENT 


129. 

In  General. 

130-131. 

Mistake. 

132-134. 

Effect— Remedies. 

135-138. 

Misrepresentation. 

139. 

Fraud. 

140-141. 

Effect— Remedies. 

142-144. 

Duress. 

145-146. 

Undue  Influence. 

IN  GENERAL 

129.  The  mutual  consent  which  is  essential  to  every  agreement 
must  be  real.  There  may  be  no  real  consent,  and  there- 
fore no  contract,  because  of 

(a)  Mistake, 

(b)  Misrepresentation, 

(c)  Fraud, 

(d)  Duress,  or 

(e)  Undue  influence. 

The  next  feature  in  the  formation  of  contract  to  be  considered 
is  genuineness  or  reality  of  consent.  If  we  have  an  apparent  agree- 
ment possessing  the  element  of  form  or  consideration,  or  both, 
and  made  between  parties  capable  of  contracting,  we  must  ask 
whether  the  consent  of  both  or  either  of  the  parties  was  given 
under  such  circumstances  as  to  make  it  no  real  expression  of 
their  intention. 

There  may  be  various  causes  for  unreality  of  consent:  (1) 
The  parties  may  not  have  meant  the  same  thing;  or  one  or  both, 
while  meaning  the  same  thing,  may  have  formed  untrue  conclu- 
sions as  to  the  subject-matter  of  the  agreement.  This  is  Mistake. 
(2)  One  of  the  parties  may  have  been  led  to  form  untrue  con- 
clusions respecting  the  subject-matter  of  the  agreement  by  state- 
ments innocently  made,  or  facts  innocently  withheld  by  the  other. 
This  is  Misrepresentation.  (3)  These  untrue  conclusions  may 
have  been  induced  by  intentional  misrepresentations  or  active  con- 
cealment by  the  other  party,  or  intentional  concealment  where 
there  was  a  duty  to  disclose,  for  the  purpose  of  deceiving.  This 
is  Fraud.     (4)  The  consent  of  one  of  the  parties  may  have  been 


§§    130-131)  MISTAKE  ^  245 

extorted  from  him  by  the  other  by  actual  or  threatened  violence 
This  is  Duress.  (5)  Circumstances  may  have  rendered  one  of 
the  parties  morally  incapable  of  resisting  the  will  of  the  other,  so 
that  his  consent  was  no  real  expression  of  intention.  This  is 
Undue  Influence.* 

MISTAKE 

130.  Mistake  is  where  the  parties  did  not  mean  the  same  thing,  or 

where  one  or  both,  while  meaning  the  same  thing,  formed 
untrue  conclusions  as  to  the  subject-matter  of  the  agree- 
ment. 

131.  Mistake  avoids  the  contract  in  the  following  cases: 

(a)  Where  the  mistake  is  as  to  the  nature  of  a  written  contract. 

the  execution  of  which  is  induced  or  procured  by  mis- 
representation ; 

(b)  Where  the  mistake  is  as  to  the  identity  of  the  person  with 

whom  the  contract  is  made; 

(c)  Where  the  subject-matter  of  the  contract,  unknown  to  the 

parties,  does  not  exist; 

(d)  Where  two  things  have  the  same  name,  and  the  parties, 

owing  to  the  identity  of  names,  do  not  mean  the  same 
subject-matter. 

It  must  be  borne  in  mind  that  we  are  here  dealing  with  mistake 
of  intention,  and  not  mistake  of  expression.  The  parties  may  be 
genuinely  agreed  on  the  terms  of  their  contract,  but  the  terms 
may,  by  mistake,  be  so  expressed  as  not  to  convey  their  meaning. 
In  these  cases  they  may  be  permitted  to  explain  the  contract,  or 
the  court  may  correct  the  mistake.  This  is  mistake  of  expression, 
and  pertains  to  the  interpretation  of  contracts,  with  which  we  shall 
deal  in  a  subsequent  chapter.^ 

The  almost  universal  rule  is  that  a  man  is  bound  by  an  agree- 
ment to  which  he  has  expressed  his  assent  in  unequivocal  terms, 
uninfluenced  by  falsehood,  violence,  or  oppression.  If  he  has 
exhibited  all  the  outward  signs  of  agreement,  the  law  will  hold 
that  he  has  agreed.  As  a  rule,  a  person  cannot  avoid  his  contract 
simply  by  showing  that  he  has  made  a  mistake."     There  are,  how- 

1  Anson,  Cont.  (8th  Ed.)  127.  2  See  post,  ch.  X. 

8  C.  H.  Yonng  Co.  v.  Spriiicrer,  113  Minn.  382,  129  N.  W.  773,  holding  mis- 
take wlthoiit  effect  where  it  was  the  mistake  of  only  one  party  and  was  not 
Induced  by,  or  actiiiilly  known  to,  the  other.  To  the  same  effect,  see  Tatum 
V.  Coast  Lumber  Co.,  1(5  Idaho,  471,  101  Pac.  0-^)7,  23  L.  R.  A.  (N.  S.)  HOD; 
Steinmeyer  v.  Schroeppel.  226  111.  9,  80  N.  E.  5G4,  10  L.  R.  A.  (N.  S.)  114,  117 


246  REALITY   OF   CONSENT  (Cll.  7 

ever,  exceptions  to  this  general  rule  in  the  case  of  mutual  mistake 
of  the  parties,  and  of  mistake  of  one  party  induced  by,  or  known 
to,  the  other.  The  latter  is  a  species  of  fraud,  and  is  accordingly 
reserved  for  treatment  under  that  topic* 

"Mutual  mistake,"  as  defined  in  a  Minnesota  case,"  "consists 
in  a  clear  showing  of  a  misunderstanding,  reciprocal  and  common 
to  both  parties,  in  respect  to  the  terms  and  subject-matter  of  the 
contract,  or  some  substantive  part  thereof."  It  should  not  be 
understood  that  mutual  mistake  is  always  sufficient  to  render  a 
contract  void.  Where  the  mistake  is  in  regard  to  an  immaterial 
matter,  or  a  mere  matter  of  inducement,  it  is  without  effect  upon 
the  validity  of  the  contract.®  But  where  the  mistake  goes  to  the 
essence  of  the  contract,  it  renders  the  contract  void  for  the  want 
of  a  meeting  of  the  minds  of  the  parties,  or  because  the  apparent 
agreement  is  upon  the  assumption  of  that  which  is  not  true.  The 
circumstances  under  which  mistake  renders  the  contract  void  will 
now  be  enumerated  and  explained. 

Mistake  as  to  the  Nature  of  the  Transaction — Written  Instrument 

There  are  cases  in  which  a  contract  is  void  because  of  a  mis- 
take as  to  the  nature  of  the  transaction.  Such  cases  arise  in  the 
execution  of  written  instruments,  and  must  arise  almost  of  neces- 
sity from  misrepresentation,  either  of  a  third  person  or  of  the  other 
party.  A  man  who  has  executed  an  instrument  cannot  avoid  its 
operation  by  saying  that  he  did  not  put  his  mind  to  it  or  that  he 
did  not  suppose  it  would  have  any  legal  effect.^  He  must  have 
been  induced  to  execute  it  by  some  deceit  or  misrepresentation 

Am.  St.  Rep.  224 ;  Brown  v.  Levy,  29  Tex.  Civ.  App.  389,  69  S.  W.  255.  See 
''Contracts,"  Dec.  Dig.  (Key-No).  §  93;   Cent.  Dig.  §§  415-419. 

*  See  post,  p.  270. 

6  C.  H.  Young  Co.  v.  Springer,  113  Minn.  382,  129  N.  W.  773.  See  "Con- 
tracts," Dec.  Dig.  {Key-No.)  %  93;   Cent.  Dig.  §§  415-419. 

«  Darnell  v.  Dolan  (Tex.  Civ.  App.)  132  S.  W.  857;  Stewart  v.  Ticonic  Nat 
Bank,  104  Me.  578,  72  Atl.  741.  See  "Contracts,"  Dec  Dig.  (Key-No.)  §  93; 
Cent.  Dig.  §§  415-419. 

T  Hunter  v.  Walters,  L.  R.  7  Ch.  81 ;  Cannon  v.  Lindsey,  85  Ala.  198,  3 
South.  676,  7  Am.  SL  Rep.  38.  And  see  Kennerty  v.  Etiwan  Phosphate  Co., 
21  S.  C.  226,  53  Am.  Rep.  6G9 ;  Little  v.  Little,  2  N.  D.  175,  49  N.  W.  736 ; 
Quimby  v.  Shearer,  56  Minn.  534,  58  N,  W.  155 ;  Campbell  v.  Van  Houten,  44 
Mo.  App.  231;  Liska  v.  Lodge,  112  Mich.  635,  71  N.  W.  171;  Royston  v. 
Miller  (C.  C.)  76  Fed.  50;  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Belliwith,  83- 
Fed.  437,  28  CCA.  358;  Muller  v.  Kelly  (C  C)  116  Fed.  545;  Sheneberger  v. 
Union  Cent.  Life  Ins.  Co.,  114  Iowa,  578,  87  N.  W.  493,  55  L.  R.  A.  269 ;  Mar- 
tin V.  Smith,  116  Ala.  639,  22  South,  917;  Bostwick  v.  Mutual  Life  Ins.  Co.^ 
116  Wis.  392,  89  N.  W.  538,  92  N.  W.  246,  67  L.  R.  A.  705 ;  Fivey  v.  Pennsyl- 
vania R.  Co.,  67  N.  J.  Law,  627,  52  Atl.  472,  91  Am.  St.  Rep.  445.  See  "Con^ 
tracts,"  Dec.  Dig.  (Key-No.)  §  93;   Cent.  Dig.  §§  415-419. 


§§    130-131)  MISTAKE  247 

which  ordinary  dih'gence  could  not  penetrate.  Thus,  where  a  man 
who  is  illiterate,  or  blind,  or  ignorant  of  the  language,  executes 
a  deed,  which  is  misread  or  misdescribed  to  him  by  the  other  party 
or  a  stranger,  and  the  deed  is  in  fact  a  different  instrument  from 
that  which  he  was  led  to  believe  it  to  be,  the  deed  is  void."  But 
if  a  man  can  read  and  does  not  read  the  document  which  he  signs,' 
or  if,  being  unable  to  read,  he  signs  without  having  it  read,^°  he 
will  not  be  heard  to  saf  that  the  contract  is  void,  although  in 
such  case,  if  he  was  induced  to  sign  it  by  fraudulent  misrepresen- 
tation as  to  the  character  or  terms,  it  is  generally  held  that  the 
contract  is  voidable/^ 

In  a  leading  case,  the  acceptor  of  a  bill  of  exchange  had  induced 
a  person  to  indorse  it  by  telling  him  that  it  was  a  guaranty,  and 
the  defendant  signed  on  the  faith  of  the  representation  without 
seeing  the  face  of  the  bill.  It  was  held  that,  if  the  defendant  was 
not  guilty  of  any  negligence  in  so  signing,  the  bill  did  not  bind 
him,  even  in  the  hands  of  a  bona  fide  purchaser  for  value.  It 
seems  "plain,  on  principal  and  on  authority,"  said  the  court,  "that 
if  a  blind  man,  or  a  man  who  cannot  read,  or  who  for  some  reason 
(not  implying  negligence)  forbears  to  read,  has  a  written  con- 
tract falsely  read  over  to  him,  the  reader  misreading  to  such  a 
degree  that  the  written  contract  is  of  a  nature  altogether  different 
from  the  contract  pretended  to  be  read  from  the  paper  which  the 
blind  or  illiterate  man  afterwards  signs,  then,  at  least  if  there  be 
no  negligence,  the  signature  so  obtained  is  of  no  force.  And  it 
is  invalid,  not  merely  on  the  ground  of  fraud,  where  fraud  exists, 
but  on  the  ground  that  the  mind  of  the  signer  did  not  accompany 

8  Thoroughgood's  Case,  2  Coke,  9;  McGinn  v.  Tobey,  62  Mich.  252,  28  N. 
W.  818,  4  Am.  St.  Rep.  848 ;  Scliuylkill  Co.  v.  Copley,  67  Pa.  386,  5  Am.  Rep. 
441;  Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Stiunick,  65  111.  223;  Burlington 
Lumber  Co.  v.  Lumber  Co.,  100  Iowa,  469,  09  N.  W.  558;  Sibley  v.  Holcomb, 
104  Ky.  670,  47  S.  W.  705.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93;  Cent. 
Dig.  §§  415-1,19. 

8  Upton  V.  Tribilcock,  91  U,  S.  45,  23  L.  Ed.  203 ;  In  re  Greenfield's  Estate, 
14  Pa.  489;  J.  I.  Case  Threshing  Machine  Co.  v.  Mattlngly,  142  Ky.  581,  134 
S.  W.  1131.  And  see  cases  cited  supra,  note  7.  See  "Contracts"  Dec.  Dig. 
(Key-No.)  §  93;    Cent.  Dig.  §§  Uo-JiW. 

10  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Belliwith,  83  Fed.  437,  28  C.  O.  A. 
858;  Muller  v.  Kelly  (C.  C.)  116  Fed.  545.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  93;    Cent.  Dig.  §§  1,15-1,19. 

11  Maxfleld  v.  Schwartz,  45  Minn.  150,  47  N.  W.  448,  10  L.  R.  A.  606 ; 
Standard  Mfg.  Co.  v.  Slot,  121  Wis.  14,  98  N.  W.  923,  105  Am.  St.  Rep.  1016 ; 
Griffin  v.  Roanoke  Railroad  &  Lumber  Co.,  140  N.  C.  514,  53  S.  E.  307,  6 
L.  R.  A.  (N.  S.)  4t)3;  Western  Mfg.  Co.  v.  Cotton  &  Long,  126  Ky.  749,  104 
S.  W.  758,  12  L.  R.  A.  (N.  S.)  427.  And  see  post,  p.  284.  See  "Contracts," 
Deo.  Dig.  (Key-No.)  §  98;   Cent.  Dig.  §  W- 


248  REALITY   OF   CONSENT  (Ch.  7 

the  signature;  in  other  words,  that  he  never  intended  to  sign, 
and  therefore,  in  contemplation  of  law,  never  did  sign,  the  con- 
tract to  which  his  name  is  appended."  ^^ 

In  this  case  the  contract  was  void,  and  therefore  could  not  be 
enforced  even  by  a  bona  fide  holder.  And  tlie  case  would  have 
been  the  same  had  the  execution  been  obtained,  without  negligence 
on  the  part  of  the  signer,  by  the  fraud  of  the  other  party.^*  In  that 
case  also  the  minds  of  the  parties  never  meet,  for  the  defrauded 
party  thinks  he  is  signing  one  instrument,  and  the  defrauding 
party  is  aware  that  the  signer  is  signing  a  different  instrument. 
The  case  is,  in  effect,  one  of  mistake,  induced  by  fraud.  If  the 
ground  of  avoidance  is  the  fraud  of  the  other  party,  whereby  the 
signer  was  induced  to  execute  the  instrument  understandinglv, 
the  misrepresentation  not  relating  to  the  character  of  the  instru- 
ment, the  contract,  as  we  shall  see,  would  be  voidable,  and  not 
void.^* 

The  absence  of  negligence  is  strongly  dwelt  upon  by  the  court 
in  the  case  above  stated,  and  the  jury  had  expressly  negatived 
its  existence.  A  person  cannot  assert  the  invalidity  of  a  note  or 
bill  of  exchange  or  deed,  as  against  a  bona  fide  purchaser  for 
value,  on  the  ground  that  through  fraud  and  circumvention  he 
was  induced  to  sign,  not  knowing  the  nature  of  the  instrument, 
unless  he  shows  that  he  was  not  guilty  of  negligence;  for  if  he 
was  negligent  he  will  be  estopped  from  asserting  the  invalidity. 
If  he  shows  this,  but  not  otherwise,  he  may  assert  the  invalidity 

12  FOSTER  V.  MACKINNON,  L.  R.  4  C.  P.  704,  38  L.  J.  C.  P.  N.  S.  810, 

20  L.  T.  N.  S.  887,  17  Wkly.  Rep.  110.5.  Throckmorton,  Cas.  Contracts, 
166.  And  see  Gibbs  v.  Linabury,  22  Mich.  479,  7  Am.  Rep.  675;  Kagel 
V.  Totten,  59  Md.  447;  Whitney  v.  Snyder,  2  Lans.  (N.  Y.)  477;  Cline  v. 
Gnthrie.  42  Ind.  227,  13  Am.  Rep.  357 ;  Walker  v.  Ebert,  29  Wis.  194,  9  Am. 
Rep.  548 ;  Puffer  v.  Smith,  57  111.  527 ;  Soper  v.  Peck,  51  Mich.  5G3.  17  N.  W. 
57;  De  Camp  v.  Hamma,  29  Ohio  St.  467;  Trambly  v.  Ricard,  130  Mass.  259; 
Corby  v.  Weddle,  57  Mo.  452;  Detwiler  v.  Bish,  44  Ind.  70;  Baldwin  v. 
Bricker,  86  Ind.  221;  Hewitt  v.  Jones,  72  111.  218;  Bowers  v.  Thomas,  62 
Wis.  480,  22  N.  W.  710;  Schaper  v.' Schaper,  84  111.  603;  Vanbrunt  v.  Sing- 
ley,  85  111.  281 ;  Esterly  v.  Eppelsheimer,  73  Iowa,  2G0,  34  N.  W.  846 ;  Wood 
V.  Lock  Co.,  96  Ga.  120.  22  S.  E.  909.  iSee  "Bills  and  ^^otes,"  Dec  Dig.  (Key- 
No.)  §  103;    Cent.  Dig.  §§  283-2^0. 

13  McGinn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St.  Rep.  848 ;  Ester- 
ly V.  Eppelsheimer,  73  Iowa.  200,  34  N.  W.  840;  Green  v.  Wilkie,  98  Iowa,  74, 
66  N.  W.  1046,  36  L.  R.  A.  434,  60  Am.  St.  Rep.  184 ;  Lindley  v.  Hofman.  22 
Ind.  App.  237,  53  N.  E.  471;  Yakima  Valley  Bank  v.  McAllister,  37  Wash. 
566,  79  Pae.  1119,  1  L.  R.  A.  (N.  S.)  1075,  107  Am.  St.  Rep.  823  (signature 
obtained  by  trick).  And  see  cases  cited  in  note  12,  supra,  and  note  15,  infra. 
See  "Bills  and  Notes,"  Dec.  Dig.  (Key-No.)  §  373;    Cent.  Dig.  ^g  i/li(J-iiiO. 

1*  Post,  p.  205. 


§§    130-131)  MISTAKE  249 

of  the  instrument,  even  as  against  a  bona  fide  purchaser."  There 
are  some  cases  which  hold  that  a  negotiable  instrument  cannot 
be  avoided  in  the  hands  of  a  bona  fide  holder,  even  though  there 
was  no  negligence;  ^*'  but  the  great  weight  of  authority  is  in  favor 
of  the  rule  above  stated. 

Mistake  as  to  the  Person  zvith  Whom  the  Contract  is  Made 

A  mistake  as  to  the  person  with  whom  the  contract  is  made  may 
avoid  it;  as,  for  instance,  where  a  contract  is  made  with  one 
person  under  a  belief  that  it  is  being  made  with  another.  Where 
a  man  intends  to  contract  with  one  person,  another  cannot  make 
himself  a  party  to  the  contract  by  substituting  himself;  for,  in 
the  first  place,  a  man,  in  entering  into  a  contract,  looks  to  the 
credit  and  character  of  the  person  with  whom  he  supposes  he  is 
contracting,^^  and,  in  the  second  place,  the  person  who  thus  sub- 
stitutes himself  is  never  present  in  the  mind  of  the  other  party, 
and  the  latter,  therefore,  does  not  consent  to  a  contract  with  him. 
Where  a  man  imitated  another's  signature,  and  thereby  induced 
persons  to  supply  him  with  goods  under  the  belief  that  they  were 
supplying  the  person  whose  signature  was  imitated,  it  was  held 
that  there  was  no  contract  with  the  person  so  procuring  the  goods. 
"Of  him,"  says  Lord  Cairns,  "they  knew  nothing,  and  of  him  they 
never  thought.  With  him  they  never  intended  to  deal.  Their 
minds  never  even  for  an  instant  of  time  rested  upon  him,  and  as 
between  him  and  them  there  was  no  consensus  of  mind  which 
could  lead  to  any  agreement  or  contract  whatever.     As  between 

"  Chapman  v.  Rose,  56  N.  T.  138,  15  Am.  Rep.  401 ;  Abbott  v.  Rose,  62  Me. 
194,  16  Am.  Rep.  427;  Taylor  v.  Atchison,  54  111.  196,  5  Am.  Rep.  118;  Mack- 
ey  V.  Peterson,  29  Minn.  298,  13  N.  W.  132,  43  Am.  Rep.  211 ;  Upton  v.  Tribil- 
cock,  91  U.  S.  50,  Z3  L.  Ed.  203 ;  Gavagan  v.  Bryant,  83  111.  370 ;  Leach  v. 
Nichols,  55  111.  273;  Ross  v.  Doland,  29  Ohio  St.  473;  Douglass  v.  Matting, 
29  Iowa,  498,  4  Am.  Rep.  238;  Fayette  Co.  Sav.  Bank  v.  Steffes,  54  Iowa, 
214,  6  N.  W.  267;  Millard  v.  Barton,  13  R.  I.  601,  43  Am.  Rep.  51;  Baldwin 
V.  Barrows,  86  Ind.  351 ;  Putnam  v.  Sullivan,  4  Mass.  45,  3  Am.  Dec.  200 ; 
Ort  V.  Fowler,  31  Kan.  478,  2  Pac.  580,  47  Am.  Rep.  501 ;  Weller's  Appeal, 
103  Pa.  594 ;  Johnston  v.  Patterson,  114  Pa,  398,  6  Atl.  746 ;  Shirts  v.  Over- 
johii,  60  Mo.  305 ;  Citizens'  Nat.  Bank  v.  Smith,  55  N.  H.  593.  And  see  cases 
cited  supra,  note  13.  See  "Bills  and  A'otcs,"  Dec.  Dig.  {Key-No:)  §  573  •  Cent 
Dig.  §§  96G-970. 

le  First  Nat.  Bank  v.  Johns,  22  W.  Va.  520,  46  Am.  Rep.  506  (collecting 
cases).  See  "Bills  and  Notes,"  Dec.  Dig.  (Key-No.)  §  S73 ;  Cent.  Dig.  §§  ooif- 
910;    "Contacts:'  Dec.  Dig.  {Ken-No.)  §  93;    Cent.  Dig.  §§  415-J,10. 

"  Humble  v.  Hunter,  12  Q.  B.  311 ;  BOSTON  ICE  CO.  v.  POTTER,  123 
Ma.ss.  28,  25  Am.  Rep.  9,  Throckmorton,  Cas.  Contacts,  305.  See  "Con- 
tracts;' Dec.  Dig.  (Key-No.)  §  93;    Cent.  Dig.  §§  415-419. 


250  REALITY   OF   CONSENT  (Ch.  7 

him  and  them  there  was  merely  the  one  side' to  a  contract,  where, 
in  order  to  produce  a  contract,  two  sides  would  be  required."  ^^ 

In  this  case  the  mistake  was  induced  by  fraud,  but  an  innocent 
mistake  may  produce  the  same  result.  Thus,  where  an  order  for 
goods  was  sent  to  a  particular  person,  and  a  man  who  had  suc- 
ceeded to  his  business  filled  the  order  without  giving  notice  of  the 
change,  it  was  held  that  he  could  not  recover  the  price  of  the 
goods.  "In  order  to  entitle  the  plaintiff  to  recover,"  it  was  said, 
"he  must  show  that  there  was  a  contract  with  himself."  ^*  And 
on  the  same  principle,  if  a  man  sells  goods  to  another,  represent- 
ing that  he  is  the  owner,  and  the  other  party  intends  to  buy  from 
him,  there  is  no  contract  with  the  real  owner,  who  was  the  undis- 
closed .principal  of  the  seller,  for  "every  man  has  a  right  to  elect 
what  parties  he  will  deal  with,"  ^°  So,  also,  if  a  man  obtains  goods 
from  another  by  falsely  representing  that  he  is  the  agent  of  another 
person,  to  whom  the  owner  of  the  goods  thinks  he  is  selling  them, 
the  sale  is  void.^^     To  render  the  sale  void,  however,  there  must 

18  CUTsT)Y  T.  LINDSAY,  L.  R.  3  App.  Cas.  465,  47  L.  J.  Q.  B.  481,  38  L. 
T.  Rep.  N.  S.  573,  26  Wkly.  Rep.  406,  Throckmorton,  Cas.  Contracts,  169; 
post,  p.  296.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93;  Cent.  Dig.  §§  4i5- 
W. 

19  Boulton  V.  Jones,  2  Hurl.  &  N.  564.  And  see  BOSTON  ICE  CO.  v.  POT- 
TER, 123  Mass.  28,  25  Am.  Rep.  9,  Throckmorton,  Cas.  Contracts,  305 ;  Ran- 
dolph Iron  Co.  V.  Elliott,  34  N,  J.  Law,  184;  Gregory  v.  Wendell,  40  Mich. 
443;  Barnes  v.  Shoemaker,  112  Ind.  512,  14  N.  E.  367;  Winchester  v.  How- 
ard, 97  Mass.  303,  93  Am.  Dec.  93 ;  Fox  v.  Tabel,  66  Conn.  397,  S4  Atl.  lOL 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93;    Cent.  Dig.  §§  415-419. 

20  Winchester  v.  Howard,  97  Mass.  303,  93  Am..  Dec.  93;  Mitchell  v.  Rail- 
ton,  45  Mo.  App.  273.  It  is  not  meant  that  an  agent  must  always  disclose 
his  agency.  An  agent  may  sell  the  property  of  his  principal  without  dis- 
closing that  he  acts  as  agent,  or  that  the  property  is  not  his  own ;  and  the 
principal  may  maintain  an  action  in  his  own  name  to  recover  the  price.  If 
the  purchase?  says  nothing  on  the  subject,  he  is  liable  to  the  unknown  prin- 
cipal. Huntington  v,  Knox,  7  Cush.  (Mass.)  371.  See  Tiffany,  Ag.  304-307. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93;    Cent.  Dig.  §§  415-419. 

21  Hardman  v.  Booth,  1  Hurl.  &  C.  803 ;  Hollins  v.  Fowler,  L.  R.  7  H.  L. 
757;  Hamet  v.  Letcher,  37  Ohio  St.  356,  41  Am.  Rep.  519;  Hentz  v.  Miller, 
94  N.  Y.  67 ;  Barker  v.  Dinsmore,  72  Pa.  427,  13  Am.  Rep.  697 ;  Edmunds  v. 
Transportation  Co.,  135  Mass,  283;  McCrillis  v.  Allen,  57  Vt  505;  Peters 
Box  &  Lumber  Co.  v.  Lesh,  119  Ind.  98,  20  N.  E.  291,  12  Am.  St.  Rep.  367 ; 
Fifer  v.  Clearfield  &  Cambria  Coal  &  Coke  Co.,  103  :Md.  1,  62  Atl,  1122  (pur- 
chase by  individual  in  name  of  fictitious  corporation  supposed  by  the  seller 
to  have  a  legal  existence).  So,  also,  where  a  person  obtains  goods  by  falsely 
representing  that  he  is  member  of  a  firm,  and  gives  in  payment  a  forged 
check  of  the  firm.  Alexander  v.  Swackhamer,  105  Ind.  81,  4  N.  E.  433,  5  N. 
E.  90S,  55  Am.  Rep.  180;  Moody  v.  Blake,  117  Mass.  23,  19  Am.  Rep.  394. 
So,  also,  where  a  person  obtains  goods  by  falsely  representing  that  he  is 
agent  of  an  undisclosed  principaL    RodlifC  v.  Dollinger,  141  Mass.  1,  4  N.  B. 


§§    130-131)  •  MISTAKE  .  251 

be  a  false  representation  that  the  agency  exists,  and  not  merely 
belief  in  its  existence  on  the  part  of  the  seller,  and  intent  to  sell 
to  the  supposed  principal. ^^ 

Mistake  as  to  Subject-Matter  of  Contract 

If  a  man  knows  the  nature  of  the  transaction,  and  the  party  with 
whom  he  is  entering  into  legal  relations,  it  is,  for  the  most  part, 
his  own  fault  if  the  subject-matter  of  the  contract — the  thing 
contracted  for  and  the  terms  of  the  bargain — is  not  what  he  sup- 
posed. "If,  whatever  a  man's  real  intention  may  be,  he  so  conducts 
himself  that  a  reasonable  man  would  believe  that  he  was  assent- 
ing to  the  terms  proposed  by  the  other  party,  and  that  other  party, 
upon  that  belief,  enters  into  the  contract  with  him,  the  man  thus 
conducting  himself  would  be  equally  bound  as  if  he  had  intended 
to  agree  to  the  other  party's  terms."  ^^  And  so,  if  the  parties  are 
agreed  in  clear  terms,  and  one  of  them  does  not  get  what  he  antic- 
ipates under  the  contract,  this  is,  if  anything,  failure  of  perform- 
ance, and  not  mistake.  Cases  cited  in  illustration  of  the  rule  that 
a  man  is  not  bound  to  accept  a  thing  substantially  different  from 
that  which  he  bargained  for  "  have  nothing  to  do  with  the  forma- 
tion of  contract,  and  we  must  keep  these  questions  of  mistake  and 
so-called  failure  of  consideration  clearly  apart. 

Mistake  as  to  the  subject-matter  of  a  contract  will  only  avoid 
it  at  law  in  a  few  cases.  Equity,  however,  may  grant  relief  in 
cases  where  the  law  may  afford  no  remedy,^* 

Same — Mistake  as  to  Existence  of  Subject-Matter 

If  the  agreement  is  in  respect  of  a  thing  which,  unknown  to 
both  parties,  does  not  exist  at  the  time  of  entering  into  the  con- 
tract, this  goes  to  the  very  root  of  the  matter,  and  avoids  the 
contract.  It  seems  that  this  rests  upon  the  ground  that  the  exist- 
ence of  the  subject-matter  is  a  condition  of  the  contract,  rather  than 
upon  the  ground  of  mutual  mistake.^®     The  subject  belongs  with 

805,  55  Am.  Rep.  439.  See,  also,  Paine  v.  Loeb,  96  Fed.  164,  37  C.  C.  A.  434  ; 
post,  p.  296.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93;  Cent.  Dig.  §§  415- 
419. 

2  2  Stoddard  v.  Ham,  129  Mass.  383,  37  Am.  Rep.  369.  See  "Contracts:' 
Dec.  Dig.  (Key-No.)  §  93;   Cent.  Dig.  §§  415-419. 

23  Per  Blackburn,  J.,  in  Smith  v.  Hughes,  L.  R.  6  Q.  B.  at  page  607.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  93;    Cent.  Dig.  §§  415-419. 

24  Gompertz  v.  Bartlett,  2  El.  &  Bl.  849;  Couder  v.  Hall,  26  B.  (N.  S.)  22. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  .95;    Cent.  Dig.  §§  415-419. 

28  See  Fritzler  v.  Robinson,  70  Iowa,  500,  31  N.  W.  61;  Geib  v.  Reynolds, 
85  Minn.  331,  28  N.  W.  923;  Fleetwood  v.  Brown,  109  Ind.  567,  9  N.  B.  352,  11 
N.  E.  779;  Thwing  v.  Lumber  Co.,  40  Minn.  184,  41  N.  W.  815.  See  "Coth 
tracts,"  Dec.  Dig.  (Key-No.)  §  98;    Cent.  Dig.  §  447. 

2«  See  Anson,  Cont  (8th  Ed.)  135;  Pollocii,  Cont  (3d  Ed.)  386,  455. 


252  .  REALITY   OF   CONSENT  (Ch.  T 

impossibility  of  performance;  but,  inasmuch  as  the  thing  agreed 
upon  has  ceased  to  be  possible  before  the  agreement,  such  im- 
possibility prevents  a  contract  from  ever  arising,  and  does  not 
operate,  as  impossibility  arising  subsequent  to  the  agreement  will 
sometimes  operate,  as  a  form  of  discharge.  One  of  the  leading 
English  cases  .on  this  subject  arose  out  of  a  sale  of  a  cargo  of 
corn  which  was  supposed  by  the  parties,  at  the  time  of  the  sale, 
to  be  on  its  voyage  to  England,  but  which,  in  fact,  having  become 
heated  on  the  voyage,  had  been  unloaded  and  sold.  It  was  held 
that  the  contract  was  void,  inasmuch  as  it  "plainly  imported  that 
there  was  sometTiing  which  was  to  be  sold  at  the  time  of  the 
contract,  and  something  to  be  purchased,"  whereas  the  object 
of  the  sale  had  ceased  to  exist."  So,  also,  where  a  person  purchased 
an  annuity  which,  at  the  time  of  the  purchase,  had  ceased  to  exist 
owing  to  the  death  of  the  annuitant,  it  was  held  that  he  could 
recover  the  price  which  he  had  paid  for  it.^^  And  so  where  the 
subject-matter  of  the  contract  is  a  right  or  title  which,  unknown 
to  the  parties,  does  not  exist."  There  are  some  cases  seemingly 
at  variance  with  this  rule,  but  they  are  cases  in  which  the  con- 
tract was  absolute,  and  not  impliedly  conditional  upon  the  exist- 
ence of  the  subject-matter.^" 

27  COUTURIER  V.  HASTIE,  5  H.  L.  Cas.  673,  Throckmorton  Cas.  Con- 
tracts, 173.  See,  also,  Allen  v.  Hammond,  11  Pet.  63,  9  L.  Ed.  633;  Gibson 
V.  Pelkie,  37  Mich.  380;  Thompson  v.  Gould,  20  Pick.  (Mass.)  134;  Ketchum  v. 
Catlin,  21  Vt  191;  King  v.  Doolittle,  1  Head  (Tenn.)  77;  Scioto  Fire  Brick 
Co.  V.  Pond,  38  Ohio  St.  65;  Anderson  v.  Armstead,  69  111.  452;  Fritzler 
V.  Robinson,  70  Iowa,  500,  31  N.  W.  61 ;  Riegel  v.  Insurance  Co.,  153  Pa.  134, 
25  Atl.  1070,  19  L.  R.  A.  16(3;  Bluestone  Ck)al  Co.  v.  Bell,  38  W.  Va.  297,  18 
S.  E.  493 ;  Thwing  y.  Lumber  Co.,  40  Minn.  184,  41  N.  W.  815 ;  United  States 
V.  Charles,  74  Fed.  142,  20  C.  C.  A.  346;  Nordyke  &  Marmon  Co.  v.  Kehlor, 
155  Mo.  G43,  56  S.  W.  287,  78  Am.  St  Rep.  600.  See  "Sales,"  Dec.  Dig.  {Key- 
No.)  §  36;  Cent.  Dig.  §§  63,  6Jf. 

2  8  Strickland  v.  Turner,  7  Exch.  208.  And  see  Cochran  v.  Willis,  L.  R.  1  Ch. 
App.  58.     See  "Sales,"  Dec.  Dig.  {Key-No.)  §  36;  Cent.  Dig.  §§  63,  6.',. 

28  Bingham  v.  Bingham,  1  Ves.  Sr.  126;  Cooper  v.  Phibbs,  L.  R.  2  H,  L.  170; 
Varnum  v.  Town  of  Hygate,  65  Vt.  416,  26  Atl.  628;  Hamilton  v.  Park  & 
McKay  Co.,  125  Mich.  72,  83  N.  W.  1018 ;  Blaney  v.  Rogers,  174  Mass.  277,  54 
N.  E.  561;  post,  p.  256.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93;  Cent.  Dig. 
§§  Jil5-Jtl9. 

30  Barr  v.  Gibson,  3  Mees.  &  W.  390 ;  Hills  v.  Sughi-ue,  15  Mees.  &  W.  253. 
"The  parties  to  an  agreement  must  be  acquainted  with  the  extent  of  their 
rights  and  the  nature  of  the  information  they  can  call  for  respecting  them, 
else  they  will  not  be  bound.  The  reason  is  that  they  proceed  under  an  idea 
that  the  fact  which  is  the  inducement  to  the  contract  is  in  a  particular  way, 
and  give  their  assent,  not  absolutely,  but  on  conditions  that  are  falsified  by 
the  event.  But  where  the  parties  treat  upon  the  basis  that  the  fact  which 
is  the  subject  of  the  agreement  is  doubtful,  and  the  consequent  risk  each  is 
to  encounter  Is  taken  into  consideration  In  the  stipulations  assented  to,  the 


§§    130-131)  MISTAKE  253 

Same — Mistake  as  to  Identity  of  Subject-Matter 

An  agreement  may  be  void  where  there  is  a  mistake  as  to  the 
identity  of  the  subject-matter;  as,  for  instance,  where  the  contract 
is  in  reference  to  a  thing-  of  a  certain  name,  and  one  of  the  parties 
thinks  he  is  contracting  for  one  thing  that  answers  the  description, 
while  the  other  party  thinks  it  is  something  else  which  also  an- 
swers the  description.  Thus,  where  a  person  agreed  to  buy  a  car- 
go "to  arrive  ex  Peerless  from  Bombay,"  and  there  were  two  ships 
of  that  name,  and  the  buyer  meant  one,  and  the  seller  the  other,  it 
was  held  that  there  was  no  contract.  ^"^ 

The  things  meant  by  the  parties  must  have  fitted  the  description, 
or  there  is  no  mistake.  If,  in  the  case  above  mentioned,  the  buyer 
had  meant  a  ship  of  a  different  name,  he  would  have  been  bound  by 
the  terms  of  his  contract.  Unless  the  description  admits  of  more 
meanings  than  one,  the  party  setting  up  mistake  can  only  do  so  by 
showing  that  he  meant  something  different  from  what  he  said,  and, 
as  we  have  seen,  he  cannot  do  this.  Nor  will  a  mere  misnomer  of 
the  subject-matter  of  a  contract  entitle  either  party  to  avoid  it  if 
the  contract  itself  contains  such  a  description  of  its  subject-matter 
as  practically  identifies  it.*'^ 

Same — Mistake  as  to  Nature  and  Essential  Qualities  of  Suhject-Matter 
If  the  parties  are  agreed  as  to  the  terms  and  subject-matter  of  the 
contract,  it  is  complete  by  mutual  assent,  notwithstanding  that  the 
parties  may  be  totally  mistaken  in  the  motives  which  induced  the 
assent.  The  fact  that  the  subject-matter  of  the  contract  possessed, 
or  failed  to  possess,  qualities  which  the  parties  both  believed,  or 
did  not  believe,  it  to  possess,  is  immaterial.*^     The  parties  may,  in- 

contract  will  be  valid,  notwithstanding  any  mistake  of  one  of  the  parties, 
provided  there  be  no  concealment  or  unfair  dealing  by  the  opposite  party 
that  would  affect  any  other  contract."  Perkins  v.  Gay,  3  Serg.  &  R.  (Pa.) 
327,  8  Am.  Dec.  Go3.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  93;  Cent.  Dig.  §§ 
415-419. 

31  Raffles  V.  Wichelhaus,  2  Hurl.  &  C.  906.  And  see  Gardner  v.  Lane,  9 
Allen  (Mass.)  492,  85  Am.  Dec.  779;  Kyle  v.  Kavanagh,  103  Mass.  356,  4  Am. 
Rep.  5G0;  Thornton  v.  Kempster,  5  Taunt.  786;  Cutts  v.  Guild,  57  N.  Y.  229; 
Sheldon  v.  Capron,  3  R.  I.  171 ;  Harvey  v.  Harris,  112  Mass.  32.  Where  on 
a  sale  of  land  one  party  thinks  he  is  buying  one  tract,  and  the  other  party 
thinks  he  is  selling  a  different  tract,  there  is  no  contract.  Kyle  v.  Kavanagh, 
supra  ;  Stong  v.  Lane,  66  Minn.  94,  68  N.  W.  765.  And  see  IRWIN  v.  WII^ 
SOX,  45  Ohio  St.  426,  15  N.  E.  209,  Throckmorton  Ca^.  Contracts,  176.  See 
"Sales,"  Dec.  Dig.   (Key-No.)'^  36;  Cent.  Dig.  §§  63,  64. 

32  lonides  v.  Pacific  Ins.  Co..  L.  R.  6  Q.  B.  686;  Hazard  v.  Insurance  Co., 
1  Snmn.  218,  Fed.  Cas.  No.  6,282.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  93; 
Ccmt.  Dig.  §§  >};j-',/.9. 

»■■<  WOOD  V.  r.OVNTON,  64  Wis.  265,  25  N.  W.  42,  54  Am.  Uop.  610,  Throck- 
morton   Cas.  Contracts,  ISO;  Hecht  v.  Batcheller,  147  Mass.  335,  17  N.  E.  651, 


254  REALITY   OF   CONSENT  (Ch.  7 

deed,  make  the  existence  of  some  quality  a  condition  of  the  con- 
tract, as  if  they  should  contract  for  the  sale  of  "this  uncut  dia- 
mond," in  which  case,  if  the  contract  should  be  construed  as  mak- 
ing it  a  condition  that  the  uncut  stone  in  question  should  be  a 
diamond  and  in  fact  the  stone  was  not  a  diamond,  there  would  be 
no  contract,  because  the  subject-matter  of  the  contract  was  not  in 
existence.**  On  the  other  hand,  if  the  subject  of  sale  was  an  un- 
cut stone,  as  a  matter  of  fact  believed  by  both  parties  to  be  a  dia- 
mond, but  there  was  nothing  in  the  terms  of  the  contract  to  make 
it  a  condition  that  the  stone  should  be  a  diamond,  their  mutual 
mistake  as  to  the  nature  of  the  stone  would  not  afifect  the  validity 
of  the  contract."^  Thus,  where  a  woman  sold  an  uncut  stone  to  a 
jeweler  for  $1,  both  being  ignorant  of  the  nature  of  the  stone,  and 
it  turned  out  to  be  a  diamond  worth  $1,000,  it  was  held  that  the  con- 
tract was  binding.**  So  where  the  subject  of  sale  was  a  note,  the 
maker  of  which  the  parties  mutually  supposed  to  be  solvent.^''  It 
is  difficult  to  reconcile  with  the  current  of  authority  the  case  of 
Sherwood  v.  Walker,  where  the  subject  of  sale  was  a  blooded  cow, 

9  Am.  St.  Rep.  708;  Taylor  v.  Fleet,  4  Barb.  (N.  Y.)  95;  Taylor  v.  Ford,  131 
Gal.  440,  63  Pac.  770;  Stewart  v.  Ticonic  Nat.  Bank,  104  Me.  578,  72  Atl.  741. 
A  settlement  with  a  railway  tfompuny  for  injuries  Is  binding,  although  the 
parties  were  ignorant  of  the  extent  of  the  injuries.  Rideal  v.  Railway  Co., 
1  Fost.  &  F.  70C;  Seeley  v.  Traction  Co.,  179  Pa.  334,  36  Atl.  229;  Kowalke 
V.  Light  Co.,  103  Wis.  472,  79  N.  W.  762,  74  Am.  St.  Rep.  877;  Houston  &  T. 
C.  R.  Co.  V.  McCarty,  94  Tex.  298,  60  S.  W.  429,  53  L.  R.  A.  507,  80  Am. 
St.  Rep.  854.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  93;  Cent.  Dig.  §§  JflS-^lB. 

34  "But  sometimes,  even  when  the  thing  which  is  the  subject-matter  of  an 
agreement  is  specifically  ascertained,  the  agreement  may  be  avoided  hy  ma- 
terial error  as  to  some  attribute  of  the  thing,  for  some  attribute  which  the 
thing  in  truth  has  not  may  be  a  material  part  of  the  description  by  which 
the  thing  was  contracted  for.  If  this  is  so,  the  thing  as  it  really  is,  namely, 
without  that  quality,  is  not  that  to  which  the  common  intention  of  the  par- 
ties was  directed,  and  the  agreement  is  void.  An  error  of  this  kind  will  no*^ 
suffice  to  make  the  transaction  void,  unless  (1)  it  is  such  that,  according  to 
the  ordinary  course  of  dealing  and  use  of  language,  the  difference  made  by 
the  absence  of  the  quality  wrongly  supposed  to  exist  amounts  to  a  difference 
in  kind ;  (2)  and  the  error  is  also  common  to  both  parties."  Pol.  Cont  (3d 
Ed.)  450.  See,  on  this  point.  Brant.  Cont.  104-108;  Miles  v.  Stevens,  3  Pa. 
21,  45  Am.  Dec.  621;  IRWIN  v.  WILSON,  45  Ohio  St.  426,  15  N.  E.  209, 
Throckmorton  Cas.  Contracts,  176;  Watson  v.  Brown,  113  Iowa,  308,  85  N.  W. 
28.     -See  "Contracts,"  Dec.  Dig.  (Key-No.)  %  93;  Cent.  Dig.  §§  415-419. 

35  Hood  V.  Todd,  139  Ky.  426,  58  S.  W.  783.  See  "Vendor  and  Purchaser," 
Dec.  Dig.  {Key-No.)  §  81;  Cent.  Dig.  §§  35-37. 

36  WOOD  V.  BOYNTON,  64  Wis.  205,  25  N.  W.  42,  54  Am.  Rep.  610,  Throck- 
morton, Cas.  Contracts,  180.  See  "Sales,"  Dec.  Dig.  {Key-No.)  §§  19,  36; 
Cent.  Dig.  §§  32,  63,  64. 

37  Hecht  V.  Batcheller,  147  Mass.  335,  17  N.  E.  651,  9  Am.  St.  Rep.  708. 
See  "Sales,"  Dec.  Dig.   {Key-No.)  §  36;  Cent.  Dig.  §§  63,  64. 


§§    130-131)  MISTAKE  255 

believed  by  the  parties  to  be  barren,  and  hence  worth  oniy  $80, 
which  was  the  price,  but  actually  capable  of  breeding,  and  hence 
worth  not  less  than  $750,  and  it  was  held  that  the  seller  could  re- 
scind on  the  ground  that  the  mistake  went  to  the  substance  of  the 
agreement.** 

Same — Mistake  as  to  Quantity  of  Subject-Matter 

Quantity  as  well  as  quality  may  be  a  condition  of  the  contract, 
and  in  such  case,  if  the  designated  quantity  does  not  exist,  there 
is  no  contract  because  of  the  nonexistence  of  the  subject-matter. 
Where,  for  example,  the  contract  is  for  the  sale  of  a  described  tract, 
which  is  also  described  as  containing  a  certain  number  of  acres,  it 
has  been  held  that  a  material  difference  in  the  quantity  is  ground 
for  rescission.*® 

Mistake  as  to  Price 

A  mistake  by  one  party  in  the  statement  of  the  price,  which  mis- 
take is  not  known  to  the  other,  does  not  afifect  the  validity  of  the 
contract  formed  by  the  acceptance  of  the  offer  as  made.*" 

Of  course,  if  the  acceptance  varies  from  the  terms  of  the  offer, 
there  is  no  contract.  Thus,  where,  by  mistake  of  a  telegraph  clerk, 
an  offer  is  wrongly  transmitted,  and  is  accepted  as  altered,  it  has 
been  held  that  the  offeror  is  not  bound.*^  So  if  the  price  is  stated 
in  such  terms  that  the  offeree  understands  it  as  for  one  quantity, 

38  Sherwood  v.  Walker,  66  Mich.  568,  83  N.  W.  919,  11  Am.  St  Rep.  531. 
See  "Sales,"  Dec.  Dig.  (Key-No.)  §  S6;    Cent.  Dig.  §§  63,  61t. 

3  9  Newton  v.  Tolles,  66  N.  H.  136.  19  Atl.  1092,  9  L.  R.  A.  50,  49  Am.  St. 
Rep.  593.  As  to  mistake  as  to  quantity  of  land,  and  relief  in  equity,  see 
Paine  v.  Upton,  87  N.  T.  327,  41  Am.  Rep.  371 ;  Miller  v.  Craig,  83  Ky.  *023,  4 
Am.  St.  Rep.  179;  Pratt  v.  Bowman,  37  W.  Va.  715,  17  S.  E.  210;  Hill  v. 
Buckley,  17  Ves.  394;  Rogers  v.  Pattie,  96  Va.  498,  31  S.  E.  897;  Bingham 
V.  Madison,  103  Tenn.  3.58,  52  S.  W.  1074,  47  L.  R.  A.  267.  See  '^Vendor  and 
Purchaser,"  Dec.  Dig.   (Key-No.)  §§  31,  108;  Cent.  Dig.  §§  55-57. 

4  0  Steinmeyer  v.  Schroeppel,  226  111.  9,  80  N.  E.  564,  10  L.  R.  A.  (N.  S.) 
114,  117  Am.  St.  Rep.  224 ;  Brown  v.  Levy,  29  Tex.  Civ.  App.  389,  69  S.  W.  25.5 ; 
Tatum  V.  Coast  Lumber  Co.,  16  Idaho,  471,  101  Pac.  957,  23  L.  R.  A,  (N.  S.) 
1109.    See  "Sales,"  Dec.  Dig.  (Key-No.)  §  SG;  Cent.  Dig.  §§  65,  6It. 

41  Henkel  v.  Pape,  L.  R.  6  Exch.  7;  Pegram  v.  Telegraph  Co.,  100  N.  C.  28, 
6  S.  E.  770,  6  Am.  St.  Rep.  557 ;  Pepper  v.  Telegraph  Co.,  87  Tenn.  554,  11  S. 
W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699.  Some  courts,  however,  hold  the 
contrary,  on  the  ground  that  the  telegraph  company,  being  selected  by  the 
proposer,  is  his  agent,  and  that  he  and  not  the  other  party  should  suffer  loss 
from  the  error.  His  remedy  is  against  the  telegraph  company  if  it  was 
negligent.  See  Western  Union  Tel.  Co.  v.  Shotter,  71  Ga.  760;  Ayer  v.  Tele- 
graph Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St  Rep.  353.  And  see  Durkee  v. 
Railroad  Co.,  29  Vt  127;  Anheuser-Busch  Brewing  Ass'n  v.  Hutmacher,  3^^ 
111.  652,  21  N.  E.  626,  4  L.  R.  A.  575 ;  Howley  v.  Whipple,  48  N.  H.  487 ;  Save- 
land  V.  Green,  40  Wis.  4.']! ;  Barons  v.  Brown,  25  Kan.  410.  See  "Contracts  " 
Dec.  Dig.   (Key-No.)  §  93;  Cent.  Dig.  §§  415-419. 


256  REALITY   OF   CONSENT  (Ch.  7 

while  the  offeror  means  it  in  another,  the  parties  are  never  ad 
idem.*^  The  effect  of  such  mistake  is  merely  to  show  that  there 
was  no  contract,  because  of  the  failure  of  the  minds  of  the  parties 
to  meet. 

Mistake  of  Law 

As  a  rule,  ignorance  or  mistake  of  law,  by  reason  of  which  the 
parties  do  not  understand  the  legal  eft'ect  of  their  contract,  does  not 
avoid  it,  unless  there  is  some  fraud,  or  unless  there  is  a  relation  of 
confidence  between  the  parties.*' 

In  cases  where  the  nonexistence  of  a  right  is  concerned,  it  has 
been  said  that  the  mistake  is  not  a  mistake  of  law,  so  as  to  render 
the  avoidance  of  a  contract  on  that  ground  a  violation  of  the  rule 
that  ignorance  of  law  is  no  excuse.  "It  is  said,  'Ignorantia  juris 
baud  excusat;'  but  in  that  maxim  the  word  'jus'  is  used  in  the 
sense  of  denoting  general  law — the  ordinary  law  of  the  country. 
But,  when  the  word  'jus'  is  used  as  denoting  a  private  right,  that 
maxim  has  no  application.  Private  right  of  ownership  is  a  matter 
of  fact;  it  may  be  the  result  also  of  a  matter  of  law;  but,  if  parties 
contract  under  a  mutual  mistake  and  misapprehension  as  to  their 
relative  and  respective  rights,  the  result  is  that  that  agreement  is 
liable  to  be  set  aside  as  having  proceeded  upon  a  common  mis- 
take." **     Under  this  rule,  the  sale  of  a  thing  which,  unknown  to 

*2  Greene  v.  Bateman,  2  Woodb.  &  M.  350.  See,  also,  Rupley  v.  Daggett,  74 
111.  351 ;  Rovegno  v.  Defferari,  40  Cal.  459 ;  Peerless  Glass  Co.  v.  Tinware 
Co.,  121  Cal.  641,  54  Pae.  101.  See  "Sales,"  Dec.  Dig.  {Key-No.)  §  36;  Cent. 
Dig.  §§  63,  61 

4  3  Birkhauser  v.  Schmltt,  45  Wis.  316,  30  Am.  Rep.  740;  Fish  v.  Cleland, 
33  111.  243 ;  Hunt  v.  Rhodes,  1  Pet  1,  7  L.  Ed.  27 ;  Storrs  v.  Barker,  6  Johns. 
Ch.  166,  10  Am.  Dec.  316;  Starr  v.  Bennett,  5  Hill  (N.  Y.)  303;  Bank  of  United 
States  V.  Daniel,  12  Pet.  32,  9  L.  Ed.  9S9 ;  Mellish  v.  Robertson,  25  Vt  603 ; 
Good  V,  Herr,  7  Watts  &  S.  (Pa.)  253,  43  Am.  Dec.  236;  Rice  v.  Manufactur- 
ing Co.,  2  Cush.  (Mass.)  80;  Dodge  v.  Insurance  Co.,  12  Gray  (Mass.)  65; 
Hubbard  v.  Martin,  8  Terg.  (Tenn.)  498;  Townsend  v.  Cowles,  31  Ala.  428; 
Christy  v.  Sullivan,  50  Cal.  337 ;  Wlieaton  v.  Wheaton,  9  Conn.  96 ;  Goltra  v. 
Sanasack,  53  111.  458 ;  Upton  v.  Tribilcock,  91  U.  S.  45,  23  L.  Ed.  203 ;  Porter 
V.  Jefferies,  40  S.  C.  92,  18  S.  E.  229 ;  Osburn  v.  Throckmorton.  90  Va.  311,  18 
S.  E.  285 ;  Pittsburgh  &  L.  R.  Iron  Co.  v.  Iron  Co.,  118  Mich.  109,  76  N.  W. 
395;  post,  pp.  226,  542.  But  see  Lowndes  v.  Chisholm,  2  McCord,  Bq.  (S.  C.) 
455,  16  Am.  Dec.  667.  In  North  Dakota  a  mistake  of  law  common  to  both 
parties  renders  the  contract  void  by  statute.  Silander  v.  Gronna,  15  N.  D. 
552,  108  N.  W.  544,  125  Am.  St.  Rep.  616.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  93;  Cent.  Dig.  §§  Uo-JflQ. 

4*  Cooper  V.  Phibbs,  L.  R.  2  H.  L.  170,  per  Lord  Westbury.  And  see  Wilson 
V.  Insurance  Co.,  60  Md.  157;  To!  and  v.  Corey,  6  Utah,  392,  24  Pac.  190; 
Lovell  V.  Wall,  31  Fla.  73,  12  South.  659;  Motherway  v.  Wall,  168  Mass.  3.33. 
47  N.  E.  135 ;  Morgan  v.  Bell,  3  Wash.  554,  28  Pac.  925,  16  L.  R.  A.  614.  "In 
the  often  quoted  passage     •     •    •    he  [Lord  Westbury]  only  meant  that  cer- 


§§  132-134)  MISTAKE  257 

the  parties,  already  belongs  to  the  buyer,  or  does  not  belong  to  the 
seller,  is  void.*^     This  is  not  a  mistake  of  law,  but  of  fact. 

Ignorance  of  foreign  laws,  including  the  laws  of  a  sister  state,  is 
regarded  as  ignorance  of  fact,  and  not  of  law,  since  a  person  is  not 
bound  to  acquaint  himself  with  them.*® 

A  mistake  in  drawing  up  a  contract,  or  a  mistake  in  the  legal  ef- 
fect of  a  description  in  a  deed  or  other  writing,  or  in  the  use  of 
technical  language,  may  be  ground  for  relief  in  equity.*^ 


SAME— EFFECT— REMEDIES 

132.  EFFECT.     Mistake,  where  it  has  any  effect,  renders  a  con- 

tract void. 

133.  REMEDIES  AT  LAW.     At  common  law  the  contract  may 

be  repudiated  if  it  is  executory,  or,  if  executed  in  whole  or 
in  part,  what  has  been  paid  or  delivered  under  it  may  be 
recovered  back. 

134.  REMEDIES  IN  EQUITY.     In  equity  a  suit  for  specific  per- 

formance may  be  resisted ;  or  suit  may  be  brought  to  de- 
clare the  contract  void;  or,  if  the  mistake  is  merely  in 
drawing  up  the  contract,  suit  may  be  brought  to  reform 
the  instrument. 

As  we  shall  presently  see,  fraud  renders  a  contract  voidable 
only.     The  effect  of  mistake,  however,  where  it  has  any  operation 

tain  words,  such  as  'ownership,'  'marriage,'  'settlement,'  etc.,  import  both  a 
conclusion  of  law  and  facts  justifying  it,  so  that,  when  asserted  without  ex- 
planation of  what  the  facts  relied  on  are,  they  assert  the  existence  of  facts 
sufBcient  to  justify  the  conclusion,  and  a  mistake  induced  by  such  an  assertion 
is  a  mistake  of  fact."  Alton  v.  Bank,  157  Mass.  341,  32  N.  E.  228,  18  L.  R. 
A.  144,  34  Am.  St.  Rep.  285,  per  Holmes,  J.  See  "Contracts"  Dec.  Dig.  (Key- 
2fo.)  §  55;  Cent.  Dig.  §§  JtlB-Jfld. 

45  2  Bl.  Comm.  450;  Trigg  v.  Read,  5  Humph.  (Tenn.)  529,  42  Am.  Dec.  447; 
Bingham  v.  Bingham,  1  Ves.  Sr.  126;  Martin  v.  McCormick,  8  N.  Y.  331; 
Cutts  V.  Guild,  57  N.  Y.  229.  Contra,  Birkhauser  v.  Schmitt,  45  Wis.  316,  30 
Am.  Rep.  740.  Ante,  p.  252.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  93; 
Cent.  Dig.  §§  J,15-'/19. 

*6  Haven  v.  Foster,  9  Pick.  (Mass.)  112,  19  Am.  Dec.  353;  Vinal  v.  Im- 
provement Co.,  53  Hun,  247,  6  N.  Y.  Supp.  595;  Bank  of  Chillicothe  v.  Dodge, 
8  Barb.  (N.  Y.)  233;  Wood  v.  Boeder,  50  Neb.  47G,  70  N.  W.  27;  Rosenbaum 
V.  Credit  System  Co.,  64  N.  J.  Law,  34,  44  Atl.  966.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  93;  Cent.  Dig.  §§  Jfl5-J,19. 

4T  Canedy  v.  Marcy,  13  Gray  (Mass.)  373;  Snell  v.  Insurance  Co.,  98  D.  S. 

85,  25  L.  Ed.  52;    Griswold  v.  Hazard.  141  U.  S.  260,  11  Sup.  Ct  972,  999,  35 

L.  Ed.  678 ;    Benson  v.  Markoe,  37  Minn.  30,  33  N.  W.  88,  5  Am.  St.  Rep.  816 ; 

Kyner  v.  Boll,  182  111.  171,  54  N.  E.  925;    Plnkbam  v.  Tinkham,  60  Neb.  600, 

Clark  Co.\t.(3d  Ed.) — 17 


258  REALITY   OF   CONSENT  (Ch.  7 

at  all,  is  to  render  the  contract  void.*'  The  common  law,  there- 
fore, offers  two  remedies  to  a  person  who  has  entered  into  an  agree- 
ment which  is  void  on  the  ground  of  mistake.  If  it  be  still  execu- 
tory, he  may  repudiate  it,  and  successfully  defend  an  action  brought 
upon  it.  If  he  has  paid  money  under  it,  he  may  recover  it  back 
upon  the  general  principle  that  "where  money  is  paid  to  another 
under  the  influence  of  a  mistake — that  is,  upon  the  supposition 
that  a  specific  fact  is  true,  which  would  entitle  the  other  to  the  mon- 
ey, but  which  fact  is  untrue — an  action  will  lie  to  recover  it 
back."  *» 

In  equity  the  victim  of  the  mistake  may  resist  specific  perform- 
ance of  the  contract,  and  may  sometimes  do  so  successfully  when 
he  might  not  be  able  to  successfully  defend  an  action  at  law  for 
damages  arising  from  its  breach.^"  He  may  also  sue  to  have  the 
contract  declared  void,  and  to  be  freed  from  his  liabilities  in  respect 
of  it.  If  the  mistake  was  in  drawing  up  the  contract,  a  suit  in  eq- 
uity may  be  brought  to  correct  the  mistake,  and  reform  the  instru- 
ment so  it  will  express  the  real  intention  of  the  parties."^ 

A  party  who  is  entitled  to  avoid  a  contract  on  the  ground  of  mis- 
take must  rescind  at  law,  or  seek  his  relief  in  equity,  within  a  rea- 
sonable time  after  knowledge  of  the  mistake. ^^ 

83  N.  W.  837.  See  "Contracts,"  Bee.  Big.  (Key-'No.)  §  93;  Cent.  Big.  §§  415- 
U9. 

48  FOSTER  V.  IMACKINNON,  L.  R.  4  C.  P.  704,  38  L.  J.  C.  P.  N,  S.  310, 
20  L.  T.  N.  S.  887,  17  Wkly.  Rep.  1105,  Throckmorton  Cas.  Contracts,  166; 
CUNDY  V.  LINDSAY,  3  App.  Cas.  459,  47  L.  J.  Q.  B.  481,  38  L.  T.  Rep.  N. 
S.  573,  26  Wkly.  Rep.  406,  Throckmorton  Cas.  Contracts,  169.  See  "Con- 
tracts:' Bee.  Big.   {Key-l^o.)   §  94;  Cent.  Big.  §§  Jf20-J,S0. 

4  8  Kelly  V.  Soiari,  9  Mees.  &  W.  54;  Wheadon  v.  Olds,  20  Wend.  (N.  Y.) 
174;  post,  pp.  630,  637.  See  "Payment,"  Bee.  Big.  (Key-'So.)  §  85;  Cent.  Big. 
§§  212-281. 

6  0  Webster  v.  Cecil,  30  Beav.  62;  Frisby  v.  Ballance,  4  Scam.  (111.)  287,  39 
Am,  Dec.  409;  Trigg  v.  Read,  5  Humph.  (Tenn.)  .529,  42  Am.  Dec  447.  See 
"Contracts,"  Bee.  Big.  (Key-No.)  §  259;  Cent.  Big.  §§  1156-1159;  "Specific 
Performance,"  Bee.  Big.  (Key-No.)  §  52;  Cent.  Big.  §§  155-159. 

ei  Elliott  V.  Sackett,  108  U.  S.  132,  2  Sup.  Ct  375,  27  L.  Ed.  678;  Beardsley 
V.  Knight,  10  Vt.  185,  33  Am.  Dec.  193;  Newcomer  v.  Kline,  11  Gill  &  J.  (Md.) 
457,  37  Am.  Dec.  74 ;  Kilmer  v.  Smith,  77  N.  Y.  226,  33  Am.  Rep.  613 ;  Jenks 
V.  Fritz,  7  Watts  &  S.  (Pa.)  201,  42  Am.  Dec.  227;  Fowler  v.  Woodward,  26 
Minn.  347,  4  N.  W.  231 ;  Paine  v.  Upton,  87  N.  Y.  327,  41  Am.  Rep.  371.  See 
"Reformation  of  Instruments,"  Bee.  Big.  (Key-No.)  §  17 ;  Cent.  Big.  §§  69-71. 

62  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798;  Thomas  v.  Bartow,  48  N. 
Y.  193 ;  Sable  v.  Maloney,  48  Wis.  331,  4  N.  W.  479 ;  Dodge  v.  Insurance  Co., 
12  Gray  (Mass.)  71;  Diman  v.  Railroad  Co.,  5  R.  I.  130.  See  "Reformation 
of  Instruments,"  Bee.  Big.   (Key-No.)  §  32;    Cent.  Big.  §§  119-121. 


§§    J 35-138)  MISREPRESENTATION  259 

MISREPRESENTATION 

135.  Misrepresentation  is  an  innocent  misstatement  or  nondisclo- 
sure of  facts.    It  must  be  distinguished  from 

(a)  Fraud,  which  is  a  false  representation  (or  nondisclosure  un- 

der such  circumstances  that  it  amounts  to  a  misrepresen- 
tation) known  to  be  false,  or  made  in  reckless  ignorance 
as  to  its  truth  or  falsity. 

(b)  Conditions  and  warranties,  which  are  representations  con- 

stituting terms  of  the  contract. 


SAME— EFFECT 

136.  Mere  misrepresentation  has  at  law  no  effect  on  a  contract,  ex- 

cept in  the  case  of  contracts  said  to  be  uberrimae  fidei,  in 
which,  from  their  nature,  or  from  the  particular  circum- 
stances, one  party  must  rely  on  the  other  for  his  knowl- 
edge of  the  facts,  and  the  other  is  bound  to  the  utmost  good 
faith.    These  are: 

(a)  Contracts  of  marine,  fire,  and  life  insurance. 

(b)  Contracts  between  persons  occupying  a  confidential  relation, 

as  between  attorney  and  client,  principal  and  agent,  guard- 
ian and  ward,  trustee  and  cestui  que  trust,  etc. 

(c)  To  a  limited  extent,  contracts  for  the  sale  of  land. 

(d)  In  England,  and  probably  with  us,  contracts  with  promoters 

of  a  corporation  for  the  purchase  of  shares. 

137.  Where  misrepresentation  has  any  effect  at  all,  it  renders  the 

contract  voidable. 

138.  A  material  misrepresentation  is  ground  for  granting  or  refus- 

ing equitable  relief. 

What  Amounts  to  a  Representation 

A  representation  is  an  affirmation  by  words  or  conduct  of  a  mat- 
ter of  fact  by  way  of  inducement  to  the  making  of  a  contract.  In 
speaking  of  representations  in  entering  into  contracts  of  insurance, 
Mr.  Justice  Story  said:  "To  constitute  a  representation,  there 
should  be  an  explicit  affirmation  or  denial  of  a  fact — of  such  an  al- 
legation as  would  irresistibly  lead  the  mind  to  the  same  conclusion. 
If  the  expressions  are  ambiguous,  or  such  as  the  parties  might  fair- 
ly use  without  intending  to  authorize  a  particular  conclusion,  the 


2G0  REALITY   OF  CONSENT  (Ch.  7 

assured  ought  not  to  be  bound  by  the  conjectures,  or  calculations 
of  probability,  of  the  underwriter."  ''' 

A  mere  statement  or  expression  of  opinion  or  statement  of  in- 
tention will  not  amount  to  a  representation,  the  falsity  of  which 
will  avoid  a  contract.^*  Thus,  in  a  contract  of  marine  insurance, 
the  assured  communicated  to  the  insurer  a  letter  from  the  master 
of  his  vessel,  stating-  that,  in  his  opinion,  the  anchorage  of  the  place 
to  which  the  vessel  was  bound  was  safe.  The  vessel  was  lost  there, 
but  the  court  held  that  the  assured,  in  reading  the  master's  letter 
to  the  insurers,  communicated  to  them  all  that  he  himself  knew  of 
the  voyage,  and  that  the  expressions  contained  in  the  letter  were 
not  a  representation  of  fact,  but  an  opinion  which  the  insurers 
could  act  upon  or  not,  as  they  pleased.'"'  Nor  are  commendatory 
expressions,  such  as  men  habitually  use  in  order  to  induce  others 
to  enter  into  a  bargain,  regarded  as  representations  of  fact.*'  The 
misrepresentation,  to  be  effective  at  all  in  avoidance  of  the  contract, 
must  have  been  relied  upon  by  the  other  party,  and  have  induced 
him  to  enter  into  the  contract,  or,  rather,  it  must  have  been  one  of 
the  inducements.*^  This  will  be  more  fully  considered  in  treating 
of  fraud.** 

Misrepresentation  Distinguished  from  Fraud 

"Misrepresentation,"  as  the  term  is  here  used,  must  be  distin- 
guished from  "fraud,"  with  which  we  are  to  deal  presently.  Mis- 
representation means  an  innocent  misstatement  or  nondisclosure  of 

Bs  Livingston  v.  Maryland  Ins.  Co.,  7  Cranch,  506,  541,  3  L.  Ed.  421.  See 
"Insurance,"  Dec.  Dig.  (Eey-yo.)  §§  253-256;   Cent.  Dig.  §§  5SS-5Jf9. 

64  Dowdall  V.  Canndy,  32  111.  App.  207;  Bryant  v.  Ocean  Ins.  Co.,  22  Pick. 
(Mass.)  200;  Rice  v.  Insurance  Co.,  4  Pick.  (Mass.)  439;  Allegre's  Adm'rs  v. 
Insurance  Co.,  2  Gill  &  J.  (Md.)  13G,  20  Am.  Dec.  424;  Fosdick  v.  Insurance 
Co.,  3  Day  (Conn.)  108;  Dennison  v.  Insurance  Co.,  20  Me.  125,  37  Am.  Dec. 
42 ;  Connecticut  Mut.  Life  Ins.  Co.  v.  Luchs,  lOS  U.  S.  498,  2  Sup.  Ct  949,  27 
L.  Ed.  800.    See  "Contracts,"  Dec.  Dig.  (Key-Xo.)  §  9^;  Cent.  Dig.  §§  420-430. 

5  5  Anderson  v.  Insurance  Co.,  L.  R.  7  C.  P.  65.  See  "Insurance,"  Dec.  Dig. 
(Eey-yo.)  §  272;    Cent.  Dig.  §§  572-582. 

5  6  A  statement  by  an  auctioneer  that  land  which  he  offered  for  sale  was 
"very  fertile  and  improvable,"  whereas,  in  fact,  it  was  in  part  abandoned  as 
useless,  was  held  to  be  "a  mere  flourishing  description  by  an  auctioneer,"  and 
not  such  a  representation  as  would  avoid  the  sale.  Dimmock  v.  Hallett,  L. 
R.  2  Ch.  21,  27.  But  on  the  sale  of  an  hotel  it  was  held  that  the  contract  was 
avoided  by  a  false  statement  that  the  present  lessee  was  "a  most  desirable 
tenant."  Smith  v.  Property  Co.,  28  Ch.  Div.  7.  And  see  Tuck  v.  Downing, 
76  111.  71.  See,  also,  post,  p.  282.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  94; 
Cent.  Dig.  §§  520-530. 

5T  Tuck  V.  Downing,  76  111.  71 ;  Fauntleroy  v.  Wilcox,  SO  111.  477;  Slaughter 
V.  Gerson,  13  Wall.  379,  20  L.  Ed.  627 ;  post,  p.  2S9.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  94;   Cent.  Dig.  §§  420-430. 

68  See  post,  pp.  282,  2S9. 


§§    135-138)  MISREPRESENTATION  261 

facts,  while  fraud  consists  in  representations  whicR  are  known  to  be 
false,  or  which  are  made  in  reckless  ignorance  of  their  truth  or  falsi- 
ty, or  in  nondisclosure  or  concealment  of  facts  under  such  circum- 
stances that  it  amounts  to  a  representation  that  the  facts  concealed 
do  not  exist.  This  will  be  more  fully  explained  in  treating  of  fraud. 
The  practical  test  of  fraud,  as  opposed  to  mere  misrepresentation, 
is  that  fraud  gives  rise  to  an  action  ex  delicto,  while  innocent  mis- 
representation does  not.  Fraud,  besides  being  a  vitiating  element 
in  contract,  is  a  tort  or  wrong  apart  from  contract,  and  may  be 
treated  as  such  by  bringing  an  action  of  deceit.  Misrepresentation, 
in  exceptional  cases,  may  invalidate  a  contract,  but  will  not  sup- 
port an  action  of  deceit. 
Misrepresentation  Distinguished  from  Conditions  and  Warranties 

It  may  be  stated  as  a  rule,  subject  to  exception  in  case  of  certain 
contracts  to  be  hereafter  noticed,  that  innocent  misrepresentation  or 
nondisclosure  of  fact  does  not  afifect  the  validity  of  consent.  The 
tendency  of  the  courts  has  been  to  bring,  if  possible,  every  state- 
ment which  is  important  enough  to  afifect  consent  into  the  terms 
of  the  contract,  and  a  representation  which  carinot  be  shown  to  have 
had  so  material  a  part  in  determining  consent  as  to  have  formxcd, 
if  not  the  basis  of  the  contract,  at  least  an  integral  part  of  its  terms, 
is  set  aside  altogether.  If  it  is  a  part  of  the  contract,  it  is  no  longer 
called  a  mere  misrepresentation ;  it  is  a  condition  or  warranty,  and 
its  falsity  does  not  affect  the  formation  of  the  contract,  but  operates 
to  discharge  the  injured  party  from  his  obligation,  or  gives  him  a 
right  of  action  based  on  the  contract  for  loss  sustained  by  reason  of 
the  untruth  of  the  statement.  The  statement  in  such  case  is  a 
term  of  the  contract. 

The  distinctions  are  well  shown  in  a  leading  English  case.  The 
action  was  brought  on  a  charter  party  in  which  it  was  agreed  that 
the  plaintiff's  ship,  "then  in  the  port  of  Amsterdam,"  should  proceed 
to  a  certain  port  and  load  a  cargo.  At  the  date  of  the  contract  the 
ship  was  not  in  the  port  of  Amsterdam,  and  did  not  arrive  there 
for  several  days.  The  defendant  refused  to  carry  out  the  agree- 
ment, and  repudiated  it.  The  court  held  that  the  statement  that  the 
ship  was  in  the  port  of  Amsterdam  was  intended  by  the  parties  to 
be  a  condition,  and  a  breach  thereof  discharged  the  charterer.*** 

59  Behn  v.  Buniess,  3  Best  &  S.  751.  And  see  Davison  v.  Von  Lingen,  113 
U.  S.  40,  5  Sup.  Ct  .346,  28  L.  Ed.  885;  Lowber  v.  Bangs,  2  Wall.  728,  17  L. 
Ed.  7G8;  NOKlilNGTON  v.  WRIGHT,  115  U.  S.  188,  6  Sup.  Ct.  12,  29  L.  Ed. 
3(JG,  Throclouorton  Cas.  Contracts,  386.  As  to  the  distinction  in  contracts  of 
insurance,  see  Hartford  Protection  Ins.  Co.  v.  Ilarmer,  2  Ohio  St.  452.  59  Aai. 
Dec.  684 ;  Schwarzliach  v.  Protective  Union,  25  W.  Va.  655,  52  Am.  Kep.  227 ; 
GLOBE  MUT.  LIFE  INS.  ASS'N  v.  WAGNER,  188  111.  133,  58  N.  E.  970,  52 


262  REALITY   OF   CONSENT  (Ch.  7 

Williams,  J.,  in  giving  judgment,  thus  distinguishes  the  various 
parts  or  terms  of  a  contract:  "Properly  speaking,  a  representation 
is  a  statement  or  assertion,  made  by  one  party  to  the  other,  before 
or  at  the  time  of  the  contract,  of  some  matter  or  circumstance  re- 
lating to  it.  Though  it  is  sometimes  contained  in  the  written  in- 
strument, it  is  not  an  integral  part  of  the  contract,  and  consequently 
the  contract  is  not  broken,  though  the  representation  proves  to  be 
untrue ;  nor  (with  the  exception  of  the  case  of  policies  of  insurance 
— at  all  events,  marine  policies,  which  stand  on  a  peculiar  anoma- 
lous footing)  is  such  untruth  any  cause  of  action,  nor  has  it  any 
efficacy  whatever,  unless  the  representation  was  made  fraudulently, 
either  by  reason  of  its  being  made  with  a  knowledge  of  its  untruth, 
or  by  reason  of  its  being  made  dishonestly,  with  a  reckless  igno- 
rance whether  it  was  true  or  untrue.  *  *  *  Though  representa- 
tions are  not  usually  contained  in  the  written  instrument  of  con- 
tract, yet  they  sometimes  are.  But  it  is  plain  that  their  insertion 
therein  cannot  alter  their  nature.  A  question,  however,  may  arise 
whether  a  descriptive  statement  in  the  written  instrument  is  a  mere 
representation,  or  whether  it  is  a  substantive  part  of  the  contract. 
This  is  a  question  of  construction  which  the  court,  and  not  the  jury, 
must  determine.  If  the  court  should  come  to  the  conclusion  that 
such  a  statement  by  one  party  was  intended  to  be  a  substantive  part 
of  his  contract,  and  not  a  mere  representation,  the  often-discussed 
question  may,  of  course,  be  raised,  whether  this  part  of  the  contract 
is  a  condition  precedent,  or  only  an  independent  agreement,  a  breach 
of  which  will  not  justify  a  repudiation  of  the  contract,  but  will  only 
be  a  cause  of  action  for  a  compensation  in  damages.  In  the  con- 
struction of  charter  parties,  this  question  has  often  been  raised  with 
reference  to  stipulations  that  some  future  thing  shall  be  done  or 
shall  happen,  and  has  given  rise  to  many  nice  distinctions.  Thus, 
a  statement  that  a  vessel  is  to  sail,  or  be  ready  to  receive  a  cargo, 
on  or  before  a  given  day,  has  been  held  to  be  a  condition,®"  while 
a  stipulation  that  she  shall  sail  with  all  convenient  speed,  or  with- 
in a  reasonable  time,  has  been  held  to  be  only  an  agreement.®^  But 
with  respect  to  statements  in  a  contract  descriptive  of  the  subject- 
matter  of  it,  or  of  some  material  incident  thereof,  the  true  doctrine, 

L.  R.  A.  649,  80  Am.  St.  Rep.  169,  Throckmorton  Cas.  Contracts,  1S4.  See  "In- 
surance:' Dec.  Dig.  (Key-No.)  §§  253-256;    Cent.  Dig.  §§  538-5.'i9. 

6  0  Glaholm  v.  Hays,  2  Man.  &  G.  257.  See  "Contracts:'  Dec.  Dig.  (Key-No.) 
§  94;  Cent.  Dig.  §§  420-^30;  "Insurance:'  Dec.  Dig.  (Key-No.)  §  285;  Cent. 
Dig.  §  560. 

«i  Seeger  v.  Duthie,  8  C.  B.  (N.  S.)  45;  Tarrabochla  v.  Hickie,  1  Hurl.  & 
N.  183.  See  "Contracts:'  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-480; 
'^Insurance:'  Dec.  Dig.  (Key-No.)  §  265;   Cent.  Dig.  §  560. 


§§    135-138)  MISREPRESENTATION  263 

established  by  principle  as  well  as  authority,  appears  to  be,  general- 
ly speaking,  that,  if  such  descriptive  statement  was  intended  to  be 
a  substantive  part  of  the  contract,  it  is  to  be  regarded  as  a  warran- 
ty; that  is  to  say,  a  condition  on  the  failure  or  nonperformance 
of  which  the  other  party  may,  if  he  is  so  minded,  repudiate  the  con- 
tract in  toto,  and  so  be  relieved  from  performing  his  part  of  it,  pro- 
vided it  has  not  been  partially  executed  in  his  favor.  If,  indeed,  he 
has  received  the  whole  or  any  substantial  part  of  the  consideration 
for  the  promise  on  his  part,  the  warranty  loses  the  character  of  a 
condition,  or,  to  speak  perhaps  more  properly,  ceases  to  be  available 
as  a  condition,  and  becomes  a  warranty  in  the  narrower  sense  of  the 
word,  viz,  a  stipulation  by  way  of  agreement,  for  the  breach  of 
which  a  compensation  must  be  sought  in  damages." 

Same — Various  Senses  of  the  Terms  and  Their  Effect 

It  will  be  observed  "^  that  in  the  opinion  above  quoted  "condition" 
is  used  in  two  senses — as  meaning  a  statement  that  a  thing  is,  and 
a  promise  that  a  thing  shall  be.  In  either  case  the  statement  or 
promise  is  of  so  important  a  nature  that  the  untruth  of  the  one,  or 
the  breach  of  the  other,  discharges  the  contract.  "Warranty"  also 
is  used  in  several  senses.  It  is  first  made  a  convertible  term  with 
a  condition.  It  is  then  used  "in  the  narrower  sense  of  the  word," 
in  which  sense  it  means  (1)  a  subsidiary  promise  in  the  contract, 
the  breach  of  which  could  under  no  circumstances  do  more  than 
give  rise  to  an  action  for  damages,  and  (2)  a  condition,  the  breach 
of  which  might  have  discharged  the  contract  had  it  not  been  so  far 
acquiesced  in  as  to  lose  its  effect  for  that  purpose,  though  it  may 
give  rise  to  an  action  for  damages. 

The  various  senses  of  the  terms  we  have  been  discussing,  and 
their  effect,  may  be  summed  up  as  follows:  (1)  "Representations," 
not  fraudulent,  made  at  the  time  of  entering  into  the  contract,  but 
not  forming  a  part  of  it,  may  affect  its  validity  in  certain  special 
cases,  but  are  otherwise  inoperative.  When  they  do  operate,  their 
falsehood  vitiates  the  formation  of  the  contract  and  makes  it  voida- 
ble. (2)  "Conditions"  are  either  statements  or  promises  which 
form  the  basis  of  the  contract.  Whether  or  not  a  term  in  the  con- 
tract amounts  to  a  condition  must  be  a  question  of  construction,  to 
be  answered  by  ascertaining  the  intention  of  the  parties  from  the 
wording  of  the  contract  and  the  circumstances  under  which  it  was 
made.  But  when  a  term  in  the  contract  is  ascertained  to  be  a  condi- 
tion, then,  whether  it  be  a  statement  or  a  promise,  the  untruth  or 
the  breach  of  it  will  entitle  the  party  to  whom  it  is  made  to  be  dis- 
charged from  his  liabilities  under  the  contract.     (3)  "Warranties," 

•  2  See  Anson,  Cont.  (Sth  Ed.)  149. 


264  REALITY   OF  CONSENT  (Ch.  7 

used  in  "the  narrower  sense,"  are  independent  subsidiary  promises, 
the  breach  of  which  does  not  discharge  the  contract,  but  gives  to  the 
injured  party  a  right  of  action  for  such  damage  as  he  has  sustained 
by  the  failure  of  the  other  to  fulfill  his  promise.  (4)  A  condition 
may  be  broken,  and  the  injured  party  may  not  avail  himself  of  his 
right  to  be  discharged,  but  continue  to  take  benefit  under  the  con- 
tract, or,  at  any  rate,  to  act  as  though  it  were  still  in  operation.  In 
such  a  case  the  condition  sinks  to  the  level  of  a  warranty,  and  the 
breach  of  it,  being  waived  as  a  discharge,  can  only  give  a  right  of 
action  for  the  damage  sustained.**  This  is  sometimes  called  a  "war- 
ranty ex  post  facto." 

A  strong  illustration  of  the  tendency  of  the  courts  to  bring  a 
statement  material  enough  to  afTect  consent  into  the  terms  of  the 
contract  is  offered  by  an  English  case  arising  out  of  a  sale  of  hops 
by  the  plaintiff  to  the  defendant.  It  appeared  that,  before  com- 
mencing to  deal,  the  defendant  asked  the  plaintiff  if  any  sulphur 
had  been  used  in  the  treatment  of  that  year's  crop.  The  plaintiff 
said,  "No."  The  defendant  said  that  he  would  not  even  ask  the 
price  if  any  sulphur  had  been  used.  After  this  the  parties  discussed 
the  price,  and  the  defendant  agreed  to  purchase  the  crop  of  that 
year.  He  afterwards  repudiated  the  contract  on  the  ground  that 
sulphur  had  been  used,  and  the  plaintiff  sued  for  the  price.  It  was 
shown  that  the  plaintiff  had  used  sulphur  over  5  acres,  the  entire 
growth  consisting  of  300  acres.  He  had  used  it  for  the  purpose  of 
trying  a  new  machine,  had  afterwards  mixed  the  whole  growth  to- 
gether, and  had  either  forgotten  the  matter  or  thought  it  unim- 
portant. The  jury  found  that  the  representation  made  by  the  plain- 
tiff as  to  the  use  of  sulphur  was  not  willfully  false,  and  they  further 
found  that  "the  affirmation  that  no  sulphur  had  been  used  was  in- 
tended by  the  parties  to  be  a  part  of  the  contract  of  sale,  and  a  war- 
ranty by  the  plaintiff."  The  court  had  to  consider  the  effect  of  this 
finding,  and  came  to  the  conclusion  that  the  representation  of  the 
plaintiff  was  a  part  of  the  contract,  and  a  preliminary  condition,  the 
breach  of  which  entitled  the  defendant  to  be  discharged  from  liabil- 
ity. Erie,  C.  J.,  said :  "We  avoid  the  term  'warranty'  because  it  is 
used  in  two  senses,  and  the  term  'condition'  because  the  question 
is  whether  that  term  is  applicable.  Then  the  effect  is  that  the  de- 
fendants required,  and  that  the  plaintiff  gave,  his  undertaking  that 
no  sulphur  had  been  used.  This  undertaking  was  a  preliminary 
stipulation;  and,  if  it  had  not  been  given,  the  defendants  would  not 
have  gone  on  with  the  treaty  which  resulted  in  the  sale.     In  this 

63  Avery  t.  Willson,  81  N.  T.  341,  37  Am.  Rep.  503 ;  post,  p.  584.    See  "Sales," 
Dec.  Dig.  (Key-'So.)  §§  21,8-251;  Cent.  Dig.  §§  707-710. 


§§    135-138)  MISKErRESENTATION  265 

sense  it  was  the  condition  upon  which  the  defendants  contracted, 
and  it  would  be  contrary  to  the  intention  expressed  by  this  stipu- 
lation that  the  contract  should  remain  valid  if  sulphur  had  been 
used.  The  intention  of  the  parties  governs  in  the  making  and  in 
the  construction  of  all  contracts.  If  the  parties  so  intend,  the  sale 
may  be  absolute,  with  a  warranty  superadded ;  or  the  sale  may  be 
conditional,  to  be  null  if  the  warranty  is  broken.  And,  upon  this 
statement  of  facts,  we  think  that  the  intention  appears  that  the 
contract  should  be  null  if  sulphur  had  been  used ;  and  upon  this 
ground  we  agree  that  the  rule  should  be  discharged."  '* 

Conclusion  as  to  Effect  of  Misrepresentation 

From  what  has  been  shown,  we  may  state  the  rule  as  to  misrepre- 
^sentations  in  this  way :  Whenever  the  validity  of  a  contract  is 
called  in  question,  or  the  liabilities  of  the  parties  are  said  to  be  af- 
fected, by  reason  of  representations  made  before  or  at  the  time  of 
entering  into  the  contract,  the  effect  of  the  representation  will  de- 
pend on  the  answers  to  the  following  questions:  (1)  Were  the 
statements  in  question  a  part  of  the  terms  of  the  contract?  (2)  If 
not,  were  they  made  fraudulently?  (3)  If  neither  of  these,  was 
the  contract  one  of  that  class  of  contracts  called  "contracts  uber- 
rijrnee^Mei,"  in  which  one  of  the  parties  had  to  rely  peculiarly^on 
the  other  for  his  knowledge  of  material  facts,  and  the  other  was 
bound  to  the  most  perfect  good  faith?  If  all  of  these  questions  are 
answered  in  the  negative,  the  representation  has  no  effect  at  all." 
Excepted  Contracts  Affected  by  Mere  Misrepresentation 

To  the  general  rule  that  misrepresentations  not  amounting  to 
fraud,  and  not  forming  a  term  of  the  contract,  do  not  affect  its  val- 
idity, there  are  exceptions  in  case  of  certain  special  contracts  some- 
times said  to  be  uberrimge  fidei ;  that  is,  contracts  of  such  a  char- 
acter that  one  of  the  parties  must  rely  on  the  other  for  his  knowl- 
edge of  the  facts.  As  the  term  implies,  the  most  perfect  good  faith 
is  required  in  such  cases,  and  any  material  misstatement  or  conceal- 
ment of  facts,  even  though  innocent,  will  avoid  the  contract. 
Same — Contracts  of  Insurance 

Among  these  excepted  contracts  are  contracts  of  insurance.  In 
the  case  of  a  contract  of  marine  insurance  the  assured  is  bound  to 
give  the  insurer  all  such  information  as  would  be  likely  to  affect 
his  judgment  in  accepting  the  risk,  and  misrepresentation  or  non- 

•  <  Bannerman  v.  White,  10  C.  B.  (N.  S.)  8G0.  See  "Sales,"  Dec.  Dig.  {Eey- 
yo.)  §§  24S-251;    Cent.  Dig.  §§  707-710. 

«E  GLOBE  MUT.  LIFE  INS.  ASS'N  v.  WAGNER,  188  111.  133,  58  N.  B.  970, 
52  L.  R.  A.  G40,  SO  Am.  St.  Rep.  1(J9,  Throckmorton  Cas.  Contracts,  184.  See 
"Contracts,"  Dec.  Dig.  {Key-'No.)  §  9^;  Cent.  Dig.  §§  42O-4S0. 


2G6  RKALITY   OF  CONSENT  (Ch.  7 

disclosure  of  any  such  matter,  though  perfectly  innocent,  will  vi- 
tiate the  policy."®  As  said  by  the  Ohio  court:  "The  assured  is 
bound  to  communicate  every  material  fact  within  his  knowledge  not 
known,  or  presumed  to  be  known,  to  the  underwriter,  whether  in- 
quired for  or  not;  and  a  failure  in  either  particular,  although  it 
might  have  arisen  from  mistake,  accident,  or  forgetfulness,  is  at- 
tended with  the  rigorous  consequence  that  the  policy  never  attach- 
es, and  is  void,  for  the  reason  that  the  risk  assumed  is  not  the  one 
intended  to  be  assumed  by  the  parties."  ®^  Thus,  a  policy  of  marine 
insurance  has  been  avoided  because  the  goods  were  insured  for  an 
amount  considerably  in  excess  of  their  value,  though  the  fact  of 
overvaluation  did  not  affect  the  risks  of  the  voyage,  simply  because 
the  valuation  is  a  fact  usually  taken  into  consideration  by  under- 
writers.®* 

It  is  said  that  the  doctrine  applicable  to  marine  insurance  does  not 
apply,  to  the  full  extent,  to  other  contracts  of  insurance.®'  It  is 
settled,  however,  that  any  false  representation  of  a  material  fact, 
however  innocently  made,  will  avoid  the  policy.''**  It  has  even  been 
held,  in  cases  where  the  fact  undisclosed  was  peculiarly  within  the 
knowledge  of  the  insured,  and  not  such  as  to  be  patent  on  examina- 
tion, that  the  innocent  nondisclosure  of  a  material  fact  will  vitiate 
the  policy.  Where,  for  instance,  one  fire  insurance  company  rein- 
sured a  risk  in  another  company  without  informing  the  latter  that  it 
had  heard  that  the  assured,  or  at  least  some  one  of  the  same  name, 
had  been  so  unlucky  as  to  have  had  several  fires,  in  each  of  which  he 
was  heavily  insured,  it  was  held  that  such  nondisclosure,  though  un- 
intentional, vitiated  the  contract  of  reinsurance.''^    Where,  however, 

66  McLanahan  v.  Insurance  Co.,  1  Pet.  170,  7  L.  Ed.  OS;  Lewis  v.  Insurance 
Co.,  10  Gray  (Mass.)  508;  Ely  v.  Hallett,  2  Caines  (N.  Y.)  57;  Stoney  v.  In- 
surance Co.,  Harp.  (S.  C.)  235;  Lexington  Fire,  Life  &  Marine  Ins.  Co.  v. 
Paver,  16  Oliio,  324 ;  Vale  v.  Insurance  Co.,  1  Wash.  C.  C.  283,  Fed.  Cas.  No. 
16,811 ;  Augusta  Ins.  &  Banking  Co.  v.  Abbott,  12  Md.  348.  See  "Insurance," 
Dec.  Dig.  (Key-No.)  §§  25G.  212;  Cent.  Dig.  §§  5^0,  5^9,  512-582. 

67  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452,  at  page  462,  59 
Am.  Dec.  684.  See  "Insurance,"  Dec.  Dig.  {Key-No.)  §§  254,  256;  Cent.  Dig. 
§§  5J,3-549. 

68  lonides  v.  Pender,  L.  R.  9  Q.  B.  537.  See  "hisurance,"  Dec.  Dig.  {Key- 
No.)  §  281;   Cent.  Dig.  §§  597-600. 

6  8  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.,  at  page  463,  59  Am. 
Dec.  684.  And  see  Burritt  v.  Insurance  Co.,  5  Hill  (N.  Y.)  188,  40  Am.  Dec. 
345;  Wineland  v.  Insurance  Co.,  53  Md.  276;  United  States  Fire  &  Marine 
Ins.  Co.  V.  Kimberly,  34  Md.  224,  6  Am.  Rep.  32.5.  See  "Insurance,"  Dec.  Dig. 
{Key-No.)  §  256;    Cent.  Dig.  §§  5^0,  549. 

70  Armour  v.  Insurance  Co.,  90  N.  Y.  450.  See  "Insurance,"  Dec.  Dig.  {Key- 
No.)  §  256;   Cent.  Dig.  §§  540,  549. 

71  Nfew  York  Bowery  Fire  Ins.  Co.  t.  Insurance  Co.,  17  Wend.  (N.  Y.)  359. 


§§    135-338)  MISREPRESENTATION  2G7 

as  is  now  generally  the  practice,  written  applications  for  insurance 
are  required,  in  which  specific  questions  are  asked  and  answered,  an 
innocent  failure  to  disclose  facts  about  which  no  inquiry  is  made 
will  not  avoid  the  policy,  though  it  is  otherwise  where  there  is  an 
innocent  failure  to  disclose  a  fact  where  inquiry  is  made.''^ 

In  England  and  in  some  of  our  states  a  distinction  has  been 
drawn  between  life  insurance  and  marine  and  fire  insurance,  and  life 
insurance  has  been  said  not  to  be  within  the  exception  to  the  rule 
that  innocent  misrepresentation  does  not  avoid  a  contract.'''  In 
most  of  our  states,  however,  no  distinction  is  made  in  this  respect 
between  life  and  fire  insurance,  misrepresentation  of  a  material  fact, 
whether  innocent  or  fraudulent,  avoiding  the  policy.'^* 

Even  in  England  the  tendency  of  the  modern  adjudications  is 
towards  applying  the  doctrine  that  innocent  misrepresentation,  in- 
cluding nondisclosure,  vitiates  a  contract  of  fire  or  life,  as  well  as 
marine,  insurance,  without  any  practical  distinction,'" 

Same — Contracts  for  the  Sale  of  Land 

It  is  said  by  Sir  William  Anson  that  contracts  for  the  sale  of 
land  are  uberrimse  fidei,  and  therefore  within  the  exception  to  the 

And  see  Walden  v.  Insurance  Co.,  12  La.  134,  32  Am.  Dec.  116 ;  Curry  v.  In- 
surance Co.,  10  Pick.  (Mass.)  535,  20  Am.  Dec.  547;  Fowler  v.  Insurance  Co., 
6  Cow.  (N.  Y.)  673,  16  Am.  Dec.  460;  Bobbitt  v.  Insurance  Co.,  66  N.  C.  70,  8 
Am.  Rep.  494.  See  "Insurance,"  Dec.  Dig.  (Key-No.)  §  256;  Cent.  Dig.  §§  540, 
51,9. 

72  Green  v.  Insurance  Co.,  10  Pick.  (Mass.)  402;  Com.  v.  Insurance  Co.,  112 
Mass.  136,  17  Am.  Rep.  72;  Washington  Mills  Mfg.  Co.  v.  Insurance  Co.,  135 
Mass.  505;  Burritt  v.  Insurance  Co.,  5  Hill  (N.  Y.)  1S8,  40  Am.  Dec  345; 
Browning  v.  Insurance  Co.,  71  N.  Y.  508,  27  Am.  Rep.  86 ;  North  American  Ins. 
Co.  V.  Throop,  22  Mich.  140,  7  Am.  Rep.  638;  Clark  v.  Insurance  Co.,  8  How. 
249,  12  L.  Ed.  1001 ;  Ripley  v.  Insurance  Co.,  30  N.  Y.  136,  86  Am.  Dec.  362 ; 
Short  V.  Insurance  Co.,  90  N.  Y.  16,  43  Am.  Rep.  138.  Bee  "Insurance,"  Dec. 
Dig.  [Key-No.)  §  256;   Cent.  Dig.  §§  540,  549. 

T8  Whulton  V.  Hardesty,  8  El.  &  Bl.,  at  page  299;  Schwarzbach  v.  Protec- 
tive Union,  25  W.  Va.  655,  52  Am.  Rep.  227.  And  see  GLOBE  MUT.  LIFE 
INS.  ASS'N  V.  WAGNER,  188  lU.  133,  58  N.  E.  970,  52  L.  R.  A.  649,  80  Am. 
St.  Rep.  169,  Throckmorton  Cas.  Contracts,  184.  See  "Insuratice,"  Dec.  Dig. 
(Key-No.)  §§  256,  272;   Cent.  Dig.  §§  540,  549,  512-582. 

7  4  Bliss,  Ins.  75;  Yose  v.  Insurance  Co.,  6  Cush.  (Mass.)  42;  Campbell  v. 
Insurance  Co.,  98  Mass.  381,  at  page  396;  Goucher  v.  Association  (C.  C.)  20 
Fed.  596;  New  York  Life  Ins.  Co.  v.  Fletcher,  117  U.  S.  519,  6  Sup.  Ct.  837, 
29  L.  Ed.  934 ;  Mutual  Ben.  Life  lus.  Co.  v.  Wise,  34  Md.  582 ;  .^tna  Life  Ins. 
Co.  V.  France,  91  U.  S.  512,  23  L.  Ed.  401.  See  Phoenix  Mut.  Life  Ins.  Co.  v. 
Raddin,  120  U.  S.  183,  7  Sup.  Ct.  500,  30  L.  Ed.  644 ;  Cable  v.  Insurance  Co., 
Ill  Fed.  19,  49  C.  C.  A.  216.  See  "Insurance,"  Dec.  Dig.  (Key-No.)  §§  256, 
212;   Cent.  Dig.  §§  540,  549.  512-582. 

7  5  London  Assurance  v.  Manscl,  41  Law  T.  (N.  S.)  225.  See  "Insurance," 
Dec.  Dig.  (Key-No.)  §§  256,  212;   Cent.  Dig.  §§  540,  549,  512-582. 


2G8  REALITY   OF  CONSENT  (Ch.  7 

rule  that  innocent  misrepresentation  does  not  affect  the  validity  of 
the  contract;  but  this  is  so  only  to  a  very  limited  extent,  even  in 
England/^  and  probably  to  a  less  extent  in  this  country.  As  a  rule, 
the  courts  of  law  with  us  recognize  no  distinction  in  this  respect 
between  contracts  for  the  sale  of  land  and  other  contracts."  A 
purchaser  of  land,  it  has  been  held,  is  not  bound  to  disclose  facts 
within  his  knowledge  which  render  the  land  worth  mUch  more  than 
the  price  he  offers;  as,  for  instance,  the  fact  that  there  is  a  valua- 
ble mine  under  it.''*  It  has,  however,  been  held  that  a  misdescrip- 
tion of  the  land,  or  of  the  title,  or  of  the  terms  to  which  it  is  sub- 
ject, though  made  without  any  fraudulent  intention,  will  avoid  the 
contract.'^"  Courts  of  equity  have  granted  or  refused  their  peculiar 
remedies  in  the  case  of  contracts  for  the  sale  of  land  because  of  in- 
nocent misrepresentation,®"  but  this  has  been  because  of  principles 
peculiar  to  equity,  and  not  because  of  the  nature  of  the  contract. 
The  same  principles  have  been  applied,  and  the  same  relief  granted 
or  refused,  in  the  case  of  other  contracts. 

Same — Contracts  to  Purchase  Shares  in  Companies 

Another  exception  is  in  the  case  of  contracts  with  the  promoters 
of  a  corporation  for  the  purchase  of  shares.  It  is  said  in  an  English 
case:  "Those  who  issue  a  prospectus  holding  out  to  the  public  the 
great  advantages  which  will  accrue  to  persons  who  will  take  shares 
in  a  proposed  undertaking,  and  inviting  them  to  take  shares  on  the 
faith  of  the  representations  therein  contained,  are  bound  to  state 
everything  with  strict  and  scrupulous  accuracy,  and  not  only  to  ab- 
stain from  stating  as  fact  that  which  is  not  so,  but  to  omit  no  one 
fact  within  their  knowledge,  the  existence  of  which  might  in  any 

T«  2  Add.  Cont.  §  538 ;   1  Sugd.  Vend.  8. 

TT  Livingston  v.  Iron  Co.,  2  Paige,  Ch,  (N.  T.)  392;  Williams  v.  Spurr,  24 
Mich,  335.  See  "Vendor  and  Purchaser,"  Dec.  Dig.  {Kcy-A'o.)  §  33;  Cent.  Dig. 
§§  3S-G6. 

T8  Note  93,  infra, 

T9  Flight  V.  Booth,  1  Bing.  N.  C.  370;  Jones  v.  Edney,  3  Camp.  285;  In  re 
Fawcett  &  Holmes,  42  Ch.  Div.  156 ;  Rayner  v,  Wilson,  43  Md.  440 ;  McKin- 
non  V.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  6  L.  R.  A.  121,  17  Am.  St.  Rep.  178 ; 
Munroe  v.  Pritchett,  16  Ala.  785,  50  Am.  Dec.  203 ;  Rimer  v.  Dugan,  39  Miss. 
477,  77  Am.  Dec.  687 ;  Tyson  v.  Passmore,  2  Pa.  122,  44  Am.  Dec.  181 ;  Keat- 
ing V,  Price,  58  Md,  532,  at  page  536 ;  Gunby  v,  Sluter,  44  Md.  237 ;  Foley  v. 
Crow,  37  Md.  51;  Mitchell  v,  McDougall,  62  111,  498;  Baughman  v,  Gould,  45 
Mich,  481,  8  N,  W,  73;  Smith  v,  Richards,  13  Pet.  26,  10  L.  Ed.  42;  Mulvey 
V,  King,  39  Ohio  St,  491,  See  "Vendor  and  Purchaser,"  Dec.  Dig.  {Key-ls!o.) 
§§  33-38;    Cent.  Dig.  §§  SS-66. 

80  Price  v,  McCauley,  19  Eng,  Law  &  Eq.  162 ;  O'Rourk  v.  Percival,  2  Ball 
&  B.  58 ;  Brooks  v,  Hamilton,  15  Minn,  26  (Gil.  10) ;  Mohler  v.  Carder,  78 
Iowa,  582,  35  N.  W.  647;  Watson  v.  Baker,  71  Tex.  739,  9  S.  W.  867.  See 
''Specific  Performance,"  Dec,  Dig.  (Key-No.)  §  53;    Cent.  Dig.  §§  160-11  ly^. 


§§    135-138)  MISREPRESENTATION  269 

degree  affect  the  nature,  extent,  or  quality  of  the  privileges  and 
advantages  which  the  prospectus  holds  out  as  inducements  to  take 
shares."  ^^  As  said  in  a  New  York  case,  the  promoters  of  a  corpor- 
ation occupy  before  its  organization  a  position  of  trust  and  confi- 
dence towards  those  whom  they  seek  to  induce  to  invest  in  the  en- 
terprise.*^ 

Same — Confidential  Relations  in  General 

All  contracts,  whatever  may  be  the  subject-matter,  are  uberrimae 
fidei,  where  the  parties  occupy  a  confidential  relation  towards  each 
other,  as  in  the  case  of  contracts  between  an  attorney  and  his  client, 
a  principal  and  his  agent,  a  trustee  and  his  cestui  que  trust,  a  guard- 
ian and  his  ward,  a  parent  and  his  child,  etc.  The  parties  in  such 
a  case  do  not  stand  on  equal  ground;  one  of  them  reposes  confi- 
dence in  the  other,  and  the  latter,  in  dealing  with  the  former,  is 
held  to  the  utmost  good  faith,  and  can  gain  no  advantage  by  his 
dealings.  Any  misrepresentation  or  nondisclosure  of  material  facts 
will  vitiate  a  contract  between  them."  All  the  exceptions  to  the 
rule  that  innocent  misrepresentation  does  not  avoid  a  contract  are 
based  on  the  fact  that  a  relation  of  confidence  exists  between  the 
parties.'* 

Same — Contracts  of  Suretyship 

The  contract  of  suretyship  has  sometimes  been  treated  as  being 
within  this  excepted  class  of  contracts,  but  as  regards  the  formation 
of  the  contract  it  is  not  really  so.  To  vitiate  such  a  contract  the 
misrepresentation  or  nondisclosure  must  amount  to  fraud;  but  we 
shall  see,  in  treating  of  fraud,  that  nondisclosure  of  facts  which 
there  is  a  duty  to  disclose  is  sometimes  regarded  as  fraud,  without 

81  New  Brunswick  &  C.  R.  Co.  v.  Muggeridge,  1  Drew.  &  S.  381.  And  see 
Venezuela  R.  Co.  v.  Kisch,  L.  R.  2  H.  L,  113 ;  Peek  v.  Gurney,  L.  R.  6  H.  L. 
403.     See  ''Corporations,''  Dec.  Dig.  (Key-No.)  §  80;    Cent.  Dig.  §§  2U-26J^. 

82  Brewster  v.  Hatch,  122  N.  Y.  349,  25  N.  B.  505,  19  Am.  St  Rep.  498. 
Bee  "Corporations,"  Dec.  Dig.  {Key-No.)  §  SO;    Cent.  Dig.  §§  2U-26}f. 

83  Brooks  V.  Martin,  2  Wall.  70,  at  page  84,  17  L.  Ed.  732 ;  Baker  v. 
Plumphrey,  101  U.  S.  494,  at  page  502,  25  L.  Ed.  1065;  James  v.  Steere,  16 
R.  I.  307,  16  Atl.  143,  2  L.  R.  A.  164 ;  Smith  v.  Davis,  49  Md.  470 ;  McCou- 
key  V.  Cockey,  69  Md.  286,  14  Atl.  465 ;  Reed  v.  Peterson,  91  111.  288 ;  Ward 
V.  Armstrong,  84  111.  151 ;  Zeigler  v.  Hughes,  55  111.  288 ;  Norris  v.  Tayloe, 
49  111.  17,  95  Am.  Dec.  568;  Casey  v.  Casey,  14  111.  112;  Bowen  v.  Kutznerj 
107  Fed.  281,  93  C.  C.  A.  33  (brother  and  sister);  post,  p.  308.  See  "At- 
torney and  Client,"  Dec.  Dig.  (Key-No.)  §  123;  Cent.  Dig.  §§  239-2. ',d ; 
"Guardian  and  Ward,"  Dec.  Dig.  (Key-No.)  §§  62,  63,  99;  Cent.  Dig.  §§  2SS^ 
299,  570,  371;  "Parent  and  Child,"  Dec.  Dig.  (Key-No.)  §  9;  Cent.  Dig.  §§ 
7Jf,  111-113;  "Trusts,"  Dec.  Dig.  (Key-No.)  §§  81,  2SS;  Cent.  Dig.  §§  115- 
IIR.  -',03.  J,0.',. 

84  2  Pom.  Eq.  Jur.  §  902. 


270  REALITY   OF   CONSENT  (Ch.  7 

regard  to  the  question  of  motive  or  design.'"  Where  the  contract  of 
suretyship  has  once  been  formed,  the  surety  is  entitled  to  be  inform- 
ed of  any  agreement  between  the  creditor  and  the  debtor  which  al- 
ters their  relations,  or  any  circumstance  which  would  give  him  a 
right  to  avoid  the  contract.^'  Failure  of  the  creditor  to  give  such 
information  does  not  affect  the  formation  of  the  contract,  but  mere- 
ly discharges  the  surety  from  any  further  liability,  and  therefore  the 
question  has  nothing  to  do  with  our  present  discussion. 

Agent's  Warranty  of  Authority 

To  the  rule  that  an  innocent  misrepresentation  has  no  effect  upon 
the  liabilities  of  the  parties  another  exception  must  be  noted.  A 
person  who  contracts  as  agent  in  effect  represents  that  he  has  the 
authority  of  his  principal,  and  if  the  representation  is  untrue  he  is 
liable  to  the  other  party  for  any  resulting  loss,  even  if  he  acted  in 
good  faith  and  in  the  belief  that  he  had  authority.  By  a  fiction,  the 
professed  agent  is  deemed  to  warrant  his  authority.'^ 

Effect  in  Equity 

This  rule  as  to  the  effect  of  misrepresentations  is  not  adhered  to 
in  courts  of  equity.  A  false  statement  made  by  one  of  the  parties 
to  the  other  has  been  held  sufficient  ground  for  refusing  specific  per- 
formance of  the  contract,  though  there  was  no  fraud,  and  the  state- 
ment was  not  a  term  in  the  contract;  *'  and  a  false  representation 
believed  to  be  true  at  the  time  it  was  made,  and  which  was  no  part 
of  the  contract,  has  been  held  sufficient  ground  for  setting  the  con- 
tract aside.'' 

» 5  North  British  Ins.  Co.  v.  Lloyd,  10  Exch.  523;  Atlas  Bank  v.  Brownell. 
9  R.  I.  1G8,  11  Am.  Rep.  231;  Hamilton  v.  .Watson,  12  Clark  &  F.  109; 
Guardian  Fire  &  Life  Assur.  Co.  v.  Thompson,  6S  Cal.  208,  9  Pac.  1;  post, 
p.  274.  -See  ''Contracts:'  Dec.  Dig.  (Key-No.)  §  9//;  Cent.  Dig.  §§  J^20-4S0 ; 
"Principal  and  Surety;'  Dec.  Dig.  (Key-No.)  §  S9;   Cent.  Dig.  §§  82-S5. 

8  8  Phillips  V.  Foxall,  L.  R.  7  Q.  B.  666;  Roberts  v.  Donovan,  70  Cal.  108, 
9  Pac.  180,  11  Pac.  500;  Evans  v.  Kneeland,  9  Ala.  42.  But  see  Atlantic  & 
P.  Telegraph  Co.  v.  Barnes,  64  N.  Y.  385,  21  Am.  Rep.  621;  Jones  v.  United 
States,  18  Wall  662,  21  L.  Ed.  867.  See  "Principal  and  Surety,"  Dec.  Dig. 
(Key-No.)  §§  50,  91;    Cent.  Dig.  §§  U6-16S. 

87  CoUen  V.  Wright,  8  E.  &  B.  647,  4  Jur.  N.  S.  357,  27  L.  J.  Q.  B.  215.  6 
Wkly.  Rep.  123,  92  E.  C.  L.  647;  Cherry  v.  Colonial  Bank,  L.  R.  3  P.  C.  24, 
3S  L.  J.  P.  C.  49,  21  L.  T.  Rep.  N.  S.  356,  6  Moore  P.  C.  N.  S.  235.  17  Wkly. 
Rep.  1031,  16  Eng.  Reprint,  714.  And  see  Tiffany  Ag.  p.  368.  See  "Principal 
and  Agent,"  Dec.  Dig.  (Key-No.)  §  136;    Cent.  Dig.  §§  U7-4o0,  JflG-JfOl. 

8  8  Lamare  v.  Dixon,  L.  R.  6  H.  L.  414,  at  page  428.  See  "Specific  Per- 
formance," Dec.  Dig.   (Key-No.)  §  53;    Cent.  Dig.  §§  I6O-I7IV2. 

89  Traill  v.  Baring,  4  De  Gex,  J.  &  S.  318,  33  L.  J.  Ch.  521 ;  Redgrave  v. 
Hurd,  20  Ch.  Div.  13;  Newbiggiug  v.  Adam,  34  Ch.  Div.  582;  Brooks  v.  Ham- 
ilton, 15  Minn.  26  (Gil.  10)  ;  Smith  v.  Richards,  13  Pet.  26,  36,  10  L.  Ed.  42 ;. 
Cowley  V.  Smyth,  46  N.  J.  Law,  380,  50  Am.  Rep.  432;    Florida  t.  Morrison, 


§§    135-138)  MISREPRESENTATION  271 

We  have  seen  that  the  tendency  of  the  common-law  courts  is  to 
bring  any  statement  which  is  material  enough  to  affect  consent,  if 
possible,  into  the  terms  of  the  contract.'"  Where  the  statement  or 
representation  is  of  this  character — that  is,  where  it  is  a  "vital  con- 
dition"— equity,  says  Sir  William  Anson,  will  give  "the  same  relief, 
but  upon  a  different  and  more  intelligible  principle."  In  equity  an 
innocent  misrepresentation,  if  it  furnishes  a  material  inducement, 
gives  a  right  to  avoid  or  rescind  a  contract  where  capable  of  recis- 
sion.®^ 

Same — Equitable  Estoppel 

A  representation  by  a  party  to  a  contract,  relied  upon  by  the 
other,  may,  in  equity,  create  an  estoppel  against  him.  This  is 
variously  termed  an  "estoppel  by  conduct,"  or  an  "estoppel  in 
pais,"  or  an  "equitable  estoppel."  Thus,  in  a  suit  based  on  a 
promise  to  make  a  provision  by  will  in  consideration  of  marriage, 
the  chancellor,  while  admitting  that  the  transaction  amounted 
to  a  contract,  based  his  decision  on  "this  larger  principle :  that 
where  a  man  makes  a  representation  to  another,  in  consequence 
of  which  that  other  alters  his  position,  or  is  induced  to  do  any 
other  act  which  is  either  permitted  or  sanctioned  by  the  person 
making  the  representation,  the  latter  cannot  withdraw  from  the 
representation,  but  is  bound  by  it  conclusively."  ®^ 

44  Mo.  App.  529;  Alker  v.  Alker  (Sup.)  12  N.  Y.  Supp.  676;  Jolce  v.  Taylor, 
6  Gill  &  J.  (Md.)  54,  25  Am.  Dec.  325;  Taymon  v.  Mitchell,  1  Md.  Ch.  497; 
Kent  V.  Carcaud,  17  Md.  299;  Keating  v.  Price,  58  Md.  532;  Thompson  v. 
Lee,  31  Ala.  292;  Converse  v.  Blumrich,  14  Mich.  109,  90  Am.  Dec  230; 
Wilcox  V.  University,  32  Iowa,  367;  Allen  v.  Hart,  72  111.  104;  Twitchell  v. 
Bridge,  42  Vt.  68 ;  Frenzel  v.  Miller,  37  Ind.  1,  10  Am.  Rep.  62 ;  Bankhead  v. 
Alloway,  6  Cold.  (Tenn.)  56;  Foard  v.  McCpmb,  12  Bush  (Ky.)  723.  But  see 
Tone  V.  Wilson,  81  111.  529 ;  Groff  v.  Rohrer,  35  Md.  327.  See  "Cancellation 
of  Instruments,"  Dec.  Dig.  (Key-No.)  §  4;   Cent.  Dig.  §1. 

90  Ante,  p.  261. 

91  Anson,  Contr.  (8th  Ed.)  155,  156,  citing  Derry  v.  Peak;  14  App.  Cas.  347 ; 
Newbigging  v.  Adam,  34  Ch.  Div.  582;  Kennedy  v.  Panama,  etc.,  Co.,  L.  R. 
2  Q.  B.  580.  See  "Cancellation  of  Instruments,"  Dec.  Dig.  (Key-No.)  §  4; 
Cent.  Dig.  §§  1-6. 

92  Coverdale  v.  Eastwood,  L.  R.  15  Eq.  121.  And  see  Brown  v.  Wheeler, 
17  Conn.  345,  44  Am.  Dec.  550 ;  Thrall  v.  Thrall,  60  Wis.  503,  19  N.  W.  353 ; 
Johnson  t,  Hubbell,  10  N.  J.  Eq.  332,  66  Am.  Dec.  773 ;  Com.  v.  Moltz,  10  Pa. 
527,  51  Am.  Dec  499;  Cowles  v.  Bacon,  21  Conn.  451,  56  Am.  Dec.  371; 
Scudder  v.  Carter,  43  lU.  App.  252 ;  STEVENS  v.  LUDLUM,  46  Minn.  160, 
48  N.  W.  771,  13  L.  R.  A.  270,  24  Am.  St.  Rep.  210,  Throckmorton,  Cas.  Con- 
tracts, 192;  Dickerson  v.  Colgrove,  100  U.  S.  578,  580,  25  L.  Ed.  618;  The 
Ottumwa  Belle  (D.  C.)  78  Fed.  643.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  97;  Cent.  Dig.  $§  U2-U6;  "Estoppel,"  Deo.  Dig.  (Key-No.)  §§  52-56;  Cent. 
Dig.  §§  121-U2. 


272  REALITY   OF  CONSENT  (Ch.  7 


FRAUD 

139.  Fraud  is  a  false  representation  of  a  material  fact,  or  nondis- 
closure of  a  material  fact  under  such  circumstances  that  it 
amounts  to  a  false  representation,  made  with  knowledge 
of  its  falsity,  or  in  reckless  disregard  of  whether  it  is  true 
or  false,  or  as  of  personal  knowledge,  with  the  intention 
that  it  shall  be  acted  upon  by  the  other  party,  and  which 
is  acted  upon  by  him  to  his  injury.    In  detail: 

(a)  There  must,  as  a  rule,  be  a  false  representation,  and  not  a 

mere  nondisclosure;  but  nondisclosure  or  conceal- 
ment is  equivalent  to  a  false  representation — 

(1)  Where  active  steps  are  taken  to  prevent  discovery  of 

the  truth. 

(2)  Where,  though  the  representation  made  is  true  as  far 

as  it  goes,  the  suppression  of  facts  renders  it  in  fact 
untrue. 

(3)  Where,  under  the  circumstances,  there  is  a  duty  to  dis- 

close the  facts  suppressed,  so  that  failure  to  disclose 
them  is  an  implied  representation  that  they  do  not 
exist. 

(b)  The  representation  must  be  of  a  past  or  existing  fact;    and 

therefore  fraud  cannot  result  from — 

(1)  Expressions  of  opinion,  belief,  or  expectation. 

(2)  Promises   or   expressions   of  intention.      A   representa- 

tion, however,  that  a  certain  intention  exists,  when 
it  does  not  exist,  is  a  false  representation  of  an  exist- 
ing fact.  / 

(3)  Representations  as  to  the  law,  as  a  rule.  ' 

(c)  The  representation  must  be  of  a  material  fact. 

(d)  The  representation  must  be  of  such  a  character,  or  must  be 

made  under  such  circumstances,  that  the  other  party 
has  a  right  to  rely  on  it.  Fraud,  therefore,  cannot  be 
predicated  upon — 

(1)  Commendatory  expressions  as  to  value,  prospects,  and 

the  like. 

(2)  False    representations    in    cases    where    the    means    of 

knowledge  are  at  hand,  but  the  other  party  does  not 
use  them  (in  some  jurisdictions). 

(e)  The  representation  must  be  made  with  knowledge  of  its 

falsity.     It  is  regarded  as  "knowingly"  false— 
(1)  If  actually  known  to  be  false. 


§  139)  FRAUD  273 

(2)  If  made  in  reckless  disregard  of  whether  it  is  true  or 

false. 

(3)  If  the  fact  is  susceptible  of  knowledge,  and  the  represen- 

tation is  made  as  of  the  party's  personal  knowledge 
(in  most  jurisdictions). 

(f)  The  representation  need  not  be  made  directly  to  the  other 

party,  but  it  must  be  intended  to  reach  him,  and  to  be 
acted  upon  by  him. 

(g)  The  representation  must  deceive;    that  it,  it  must  be  relied 

upon  by  the  other  party,  and  must  induce  him  to  act. 
(h)   It  must  result  in  injury. 

Fraud  is  a  False  Representation 

Subject  to  exceptions  to  be  presently  explained,  a  mere  nondis- 
closure of  fact,  without  more,  is  not  fraud,  whatever  the  intention 
may  be.  There  must  be  some  active  attempt  to  deceive,  either 
by  a  statement  which  is  false,  or  by  a  representation,  true  as  far  as 
it  goes,  but  accompanied  with  such  a  suppression  of  facts  as  to 
make  it  convey  a  false  impression,  or  else  there  must  be  a  con- 
cealment of  facts  which  the  party  is  under  a  duty  to  disclose. 

Same — Silence  or  Nondisclosure  of  Facts 

Mere  silence  or  nondisclosure  of  facts  may  be  such  a  misrepre- 
sentation as  will  avoid  a  contract  uberrimas  fidei,  but  otherwise 
it  generally  has  no  effect,  whatever  may  be  the  intention  in  fail- 
ing to  make  the  disclosure.  Nondisclosure,  even  with  intent  to 
deceive,  does  not  amount  to  a  fraud  which  will  render  a  contract 
voidable,  or  sustain  an  action  for  deceit,  unless  there  is  active 
concealment  or  a  suppression  of  facts  which  there  is  a  duty  to 
disclose.®'  For  instance,  in  an  English  case,  where  the  defendant 
had  let  to  the  plaintiff  a  house  which  he  knew  was  required  for 

93  Peek  V.  Gumey,  L.  R.  6  H.  L.  403;  Dambmann  v.  Schulting,  75  N.  Y.  55; 
People's  Bank  of  City  of  New  York  v.  Bogart,  81  N.  Y.  103,  37  Am.  Rep.  481 ; 
PlacUey  v.  Importing  Co.,  13  Ohio  St.  502,  82  Am.  Dee.  454;  Rison  v.  New- 
berry, 90  Va.  513,  18  S.  E.  91G;  Laidlaw  v.  Organ,  2  Wheat  178,  4  L.  Ed. 
214 ;  Williams  v.  Spnrr,  24  Mich.  335 ;  Crowell  v.  Jackson,  53  N.  J.  Law,  G56, 
23  Atl.  426 ;  Cleaveland  v.  Richardson,  1.32  U.  S.  318.  10  Sup.  Ct.  100,  33  L. 
Ed.  384;  Cochrane  v.  Halsey,  25  Minn.  52;  West  v.  Anderson,  9  Conn.  107, 
21  Am.  Dec.  737;  Juzan  v.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448;  Codding- 
ton  V.  Goddard,  16  Gray  (Mass.)  463.  Failure  of  the  purchaser  of  land  to 
disclose  to  the  vendor  the  fact  that  there  is  mineral  under  it  does  not  amount 
to  fraud.  Harris  v.  Tyson,  24  Pa.  347,  64  Am.  Dec.  661 ;  Butler's  Appeal,  26 
Pa.  63 ;  Smith  v.  Beatty,  37  N.  C.  456,  40  Am.  Dec.  435.  See,  also,  as  to  con- 
cealment by  purchaser.  Neill  v.  Shamburg,  158  l^a.  263,  27  Atl.  992;  ante,  p. 
270,  note  85.  -See  "Contracts,"  Dec.  Dig.  (Koj-Xo.)  §  .0,};  Cent.  Dig.  §§  ^20- 
J,30. 

Clark  Cont.(3d  Kd.)— 18 


274  REALITY   OF  CONSENT  (Ch.  7 

immediate  occupation,  without  disclosing  that  it  was  in  a  ruinous 
condition  and  unfit  for  habitation,  it  was  held  that  an  action  for 
fraud  would  not  lie.  "It  is  not  pretended,"  it  was  said,  "that 
there  was  any  warranty,  express  or  implied,  that  the  house  was 
fit  for  immediate  occupation ;  but  it  is  said  that,  because  the  de- 
fendant knew  that  the  plaintiff  wanted  it  for  immediate  occupa- 
tion, and  knew  that  it  was  in  an  unfit  and  dangerous  state,  and 
did  not  disclose  that  fact  to  the  plaintiff,  an  action  of  deceit  will 
lie.  The  declaration  does  not  allege  that  the  defendant  made  any 
misrepresentation,  or  that  he  had  reason  to  suppose  that  the  plain- 
tiff would  not  do  what  any  man  in  his  senses  would  do,  viz.  make 
proper  investigation,  and  satisfy  himself  as  to  the  condition  of 
the  house  before  he  entered  upon  the  occupation  of  it.  There 
is  nothing  amounting  to  deceit."  "* 

The  fact  that  the  purchaser  of  goods  fails  to  disclose  the  fact 
that  he  is  insolvent  does  not  amount  to  fraud  if  he  intends  to  pay 
for  them,  and  is  not  asked  as  to  his  financial  condition.^'  If, 
however,  at  the  time  of  the  purchase,  he  does  not  intend  to  pay, 
he  is  guilty  of  fraud,  for  he  impliedly  represents  that  he  does 
intend  to  pay;  ®®   and  it  has  been  held  by  a  number  of  courts  that. 

9  4  Keates  v.  Lord  Cadogan,  10  C.  B.  501.  See,  also,  Fisher  v.  Llghthall,  4 
Mackey  (15  D.  C.)  82,  54  Am.  Rep.  258;  Lucas  v.  Coulter,  104  Ind.  81,  3  N.  E. 
G22;  Foster  v.  Peyser,  9  Cush.  (Mass.)  242,  57  Am.  Dec.  43.  See  "Con- 
tracts,"  Dec.  Dig.  (Key-No.)  §  5-'/;   Cent.  Dig.  §§  420-4SO. 

95  Talcott  V.  Henderson,  31  Ohio  St.  162,  27  Am.  Rep.  501;  Powell  v.  Brad- 
lee,  9  Gill  &  J.  (Md.)  220;  Morrill  v.  Blackman,  42  Conn.  324;  Zucker  v. 
Karpeles.  88  Mich.  413,  50  N.  W.  373;  Hotchkin  v.  Bank,  127  N.  Y.  329,  27 
N.  E.  1050;  Le  Grand  v.  Bank,  81  Ala.  123,  1  South.  4G0,  60  Am.  Rep.  140; 
Reticker  v.  Katzenstein,  26  111.  App.  33;  Bidault  v.  Wales,  20  Mo.  546,  64 
Am.  Dec.  205 ;  Wilson  v.  White,  80  N.  C.  280.  See  "Sales,"  Dec.  Dig.  (Key- 
No.)  §  45;   Cent.  Dig.  §  9^. 

98  Talcott  V.  Henderson,  31  Ohio  St.  162,  27  Am.  Rep.  501 ;  Stewart  v. 
Emerson,  52  N.  H.  301 ;  Donaldson  v.  Farwell,  93  U.  S.  633,  23  L.  Ed.  993 ; 
Ex  parte  Whittaker,  10  Ch.  App.  446;  Burrill  v.  Stevens,  73  Me.  395,  40  Am. 
Rep.  366;  Belding  Bros.  &  Co.  v.  Frankland,  8  Lea  (Tenn.)  67,  41  Am.  Rep. 
630;  Harris  v.  Alcock,  10  Gill  &  J.  (Md.)  226,  32  Am.  Dec.  158;  Wilmot  v. 
Lyon,  49  Ohio  St.  296.  34  N.  E.  720 ;  Nichols  v.  McMichael,  23  N.  Y.  266,  80 
Am.  Dec.  259;  Farwell  v.  Hanchett,  120  111.  573,  11  N.  E.  875;  Brower  v. 
Goodyer,  88  Ind.  572;  Ross  v.  Miner,  64  Mich.  204,  31  N.  W.  185;  Id.,  67 
Mich.  410,  35  N.  W,  60;  Ayres  v.  French,  41  Conn.  142;  Jordan  v.  Osgood, 
109  Mass.  457,  12  Am.  Rep.  731;  Dow  v.  Sanborn,  3  Allen  (Mass.)  181;  Yea- 
ger  Milling  Co.  v.  Lawler,  39  La.  Ann.  572,  2  South.  398;  Allen  v.  Hartfield, 
76  111.  358;  Devoe  v.  Brandt,  53  N.  Y.  462;  Hennequin  v.  Naylor,  24  N.  Y. 
139;  Carnahan  v.  Bailey  (C.  C.)  28  Fed.  519;  Fechheimer  v.  Baum  (C.  C.) 
37  Fed.  167,  2  L.  R.  A.  153 ;  Shipman  v.  Seymour,  40  Mich.  274 ;  Wright  v. 
Brown,  67  N.  Y.  1;  Bidault  v.  Wales,  20  Mo.  546,  64  Am.  Dec.  205;  Des 
Farges  v.  Pugh,  93  N.  C.  31,  53  Am.  Rep.  446.  There  are  a  few  decisions  to 
the  contrary.     Smith  v.  Smith,   21  Pa.  367,   60  Am.  Dec.   51;    Bughman  v. 


§  139)  FRAUD  275 

if  he  has  no  reasonable  expectation  of  being  able  to  pay,  it  is  equiv- 
alent to  an  intention  not  to  pay.°^ 

Active  efforts  to  conceal  a  fact — as,  for  instance,  where  obstacles 
are  thrown  in  the  way  to  prevent  the  other  party's  inquiries  from 
resulting  in  its  discovery,  or  his  attention  is  diverted  for  such  a 
purpose — are  equivalent  to  a  false  representation.'*  So,  also,  if 
a  person  makes  a  representation  as  to  facts  which  is  true  as  far 
as  it  goes,  but  intentionally  suppresses  other  facts  so  as  to  make 
the  representation  convey  a  false  impression,  this  is  a  false  repre- 
sentation, and  not  a  mere  nondisclosure.  The  concealment  or 
withholding  of  that  which  is  not  stated  makes  that  which  is  stated 
absolutely  false.®® 

.Most  exceptions  to  the  rule  that  nondisclosure  is  not  fraud  lie 
in  the  distinction  between  mere  silence  where  there  is  no  duty 

Bank,  159  Pa.  94,  28  Atl.  209;  Bell  v.  Ellis,  33  Cal.  620.  See  "Sales,"  Dec. 
Dig.   (Kev-No.)  §  45;   Cent.  Dig.  §  94. 

«7Talcott  V.  Henderson,  31  Ohio  St.  162,  27  Am.  Rep.  501;  Jaffrey  v. 
Bro:v\'n  (C.  C.)  29  Fed.  476;  Elsass  v.  Harrington,  28  Mo.  App.  300;  Whittin 
V.  Fitzwater,  129  N.  Y.  62G,  29  N.  E.  298;  Dalton  v.  Thurston,  15  R.  I.  418, 
7  Atl.  112,  2  Am.  St.  Rep.  905.  But  see,  contra.  Com.  v.  Eastman,  1  Cush. 
(Mass.)  189,  48  Am.  Dee.  596;  Biggs  v.  Barry,  2  Curt.  259,  Fed.  Cas.  No. 
1,402 ;  Burrill  v.  Stevens,  73  Me.  395,  40  Am.  Rep.  366.  It  has  even  been  held 
that  the  fact  of  insolvency  and  concealment  is  sufficient  to  take  the  case  to 
the  jury  on  the  question  of  intention  not  to  pay.  Edson  v.  Hudson,  83  Mich. 
450,  47  N.  W.  347;  Slagle  &  Co.  v.  Goodnow,  45  Minn.  531,  48  N.  W.  402. 
See  "Sales,"  Dec.  Dig.  {Key-No.)  §  45;    Cent.  Dig.  §  94. 

88  Turner  v.  Harvey,  Jacob  169  (Lord  Eldon)  ;  Walters  v.  Morgan,  3  De 
G.  F.  &  J.  718 ;  Croyle  v.  Moses,  90  Pa.  250,  35  Am.  Rep.  654 ;  Matthews  v. 
Bliss,  22  Pick,  (Mass.)  48;  Firestone  v.  Werner,  1  Ind.  App.  293,  27  N.  E. 
623 ;  Kenner  v.  Harding,  85  111..  265,  28  Am.  Rep.  615 ;  Kohl  v.  Lindley,  39 
111.  195,  201,  89  Am.  Dec.  294 ;  Cogel  v.  KnLseley,  89  111.  598,  601 ;  Roseman 
V.  Canovan,  43  Cal.  110;  Crompton  v.  Beedle,  83  Vt.  287,  75  Atl.  331,  30  L. 
R.  A.  (N.  S.)  748,  Ann.  Cas.  1912A,  399  (active  maneuvers  of  purchaser  to 
conceal  from  vendor  existence  of  quarry  on  land)  ;  Merchants'  Bank  of  Bal- 
timore V.  Campbell,  75  Va.  455  (concealment  of  Luray  Cavern  under  land 
purchased  for  $480).  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  94;  Cait.  Dig. 
§§  42M30. 

»9  Mallory  v.  Leach,  35  Vt  156,  82  Am.  Dec.  625;  Hadley  v.  Clinton  Imp. 
Co.,  13  Ohio  St  502,  82  Am.  Dec.  454;  Coles  v.  Kennedy,  81  Iowa,  360,  46 
N.  W.  loss,  25  Am.  St  Rep.  503;  Kidney  v.  Stoddard,  7  Mete,  (Mass.)  252; 
Newell  V,  Randall,  32  Minn.  171,  19  N.  W.  972,  50  Am.  Rep.  502 ;  Van  Houten 
v.  Morse,  162  Mass.  414,  38  N.  E.  705,  26  L.  R.  A.  430,  44  Am.  St  Rep.  373. 
"If  the  presentation  of  that  which  is  true  creates  an  impression  which  is 
false,  it  is,  as  to  him  who,  seeing  the  misapprehension,  seeks  to  profit  by  it, 
a  case  of  false  representation."  Lomerson  v.  Johnston,  47  N,  J,  Eq.  312,  20 
Atl.  675,  24  Am.  St  Rep.  410.  And  see  Busch  v.  Wilcox,  82  Mich.  315,  46 
N.  W.  ^0;  Howard  v.  Gould,  28  Vt  523,  67  Am.  Dec.  728;  Baker  v.  Rocka- 
brand,  118  111.  365,  8  N,  E.  456.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  J  94; 
Cent.  Dig.  §§  J,20-JiS0. 


276  REALITY  OF  CONSENT  (Ch.  7 

to  speak,  and  concealment  of  facts  which  are  peculiarly  within  tha 
knowledge  of  the  party  concealing  them,  and  which,  under  the 
circumstances,  he  is  bound  in  good  faith  to  disclose.  "In  an 
action  of  deceit,"  it  has  been  said  by  the  supreme  court  of  the 
United  States,  "it  is  true  that  silence  as  to  a  material  fact  is  not 
necessarily,  as  matter  of  law,  equivalent  to  a  false  representation. 
But  mere  silence  is  quite  different  from  concealment.  'Aliud  est 
tacere,  aliud  celare' — a  suppression  of  the  truth  may  amount  to 
a  suggestion  of  falsehood.  And  if,  with  intent  to  deceive,  either 
party  to  a  contract  of  sale  conceals  or  suppresses  a  material  fact 
which  he  is  in  good  faith  bound  to  disclose,  this  is  evidence  of, 
and  equivalent  to,  a  false  representation,  because  the  concealment 
or  suppression  is,  in  effect,  a  representation  that  what  is  disclosed 
is  the  whole  truth.  The  gist  of  the  action  is  fraudulently  produc- 
ing a  false  impression  upon  the  mind  of  the  other  party;  and,  if 
this  result  is  accomplished,  it  is  unimportant  whether  the  means 
of  accomplishing  it  are  words  or  acts  of  the  defendant,  or  his 
concealment  or  suppression  of  material  facts  not  equally  within 
the  knowledge  or  reach  of  the  plaintiff."  ^ 

In  contracts  of  sale,  disclosure  is  not  ordinarily  incumbent  on 
the  seller.     The  rule  is  caveat  emptor.^     It  has  even  been  held 

1  Stewart  v.  Cattle-Ranch  Co.,  128  U.  S.  3S3,  9  Sup.  Ct.  101,  32  L.  Ed.  439 ; 
Laidlaw  v.  Organ,  2  Wheat.  178,  4  L.  Ed.  214;  Smith  v.  Countryman,  80 
N.  Y.  655 ;  Griel  v.  Lomax,  89  Ala.  420,  6  South.  741 ;  Loewer  v.  Harris,  6  C. 
O.  A.  394,  57  Fed.  368;  George  v.  Johnson,  6  Humph.  (Tenn.)  36,  44  Am. 
Dec.  288;  Beard  v.  Campbell,  2  A.  K.  Marsh.  (Ky.)  125,  12  Am.  Dec.  362; 
Peebles  v.  Stephens,  3  Bibb  (Ky.)  324,  6  Am.  Dec.  660;  Waters  v.  Mattingley, 
1  Bibb  (Ky.)  244,  4  Am.  Dec.  631;  Fish  v.  Cleland,  33  111.  238;  Mitchell  v. 
McDougall,  62  111.  498 ;  Firestone  v.  Werner,  1  Ind.  App.  293,  27  N.  E.  623 ; 
Morgan  v.  Owens,  228  111.  598,  81  N.  E.  1135.  A  per.son  taking  a  bond  for  the 
future  good  conduct  of  an  agent  already  in  Ms  employment  must  communi- 
cate to  a  surety  his  knowledge  of  the  past  criminal  conduct  of  such  agent  in 
the  course  of  his  past  employment.  The  mere  nondisclosure  of  such  knowl- 
edge, irrespective  of  motive  or  design,  is  a  fraud,  which  will  invalidate  the 
bond.  Guardian  Fire  &  Life  Assur.  Co.  v.  Thompson,  68  Cal.  208,  9  Pac.  1; 
State  V.  Sooy,  39  N.  J.  Law,  135 ;  Dinsmore  v.  Tidball,  34  Ohio  St.  418 ;  Rob- 
erts V.  Donovan,  70  Cal.  108,  9  Pac.  ISO,  11  Pac.  599.  See  ante,  p.  270.  A 
man  may  avoid  his  pi'omise  to  marry  a  woman  if  she  concealed  from  him  the 
fact  that  she  had  previously  given  birth  to  a  bastard  child,  or  was  of  im- 
moral character.  Bell  v.  Eaton,  28  Ind.  468,  92  Am.  Dec.  329;  Palmer  v. 
Andrews,  7  Wend.  (N.  Y.)  143;  Berry  v.  Bakeman,  44  Me.  164;  Goodall  v. 
Thurman,  1  Head  (Tenn.)  208;  Butler  v.  Eschleman,  18  111.  44;  Capehart  v. 
Carradine,  4  Strob.  (S.  C.)  42;  post,  p.  288.  See  "Fraud,"  Dec.  Dig.  {Key- 
No.)  §§  1,  6,  S3;   Cent.  Dig.  §  1-8. 

2  Smith  V.  Hughes,  L.  R.  6  Q.  B.  597 ;  Laidlaw  v.  Organ,  2  Wheat  178,  4 
L.  Ed.  214;  People's  Bank  of  City  of  New  York  v.  Bogart,  81  N.  Y.  101,  37 
Am.  Rep.  481;  Kintzing  v.  McElrath,  5  Pa.  467:  Cogel  v.  Kniseley,  89  111, 
59«.     See  ''Sales,"  Dec.  Dig.   {Key-No.)  §  4i;    Cent.  Dig.  §  S4. 


§  139)  FRAUD  277 

that  the  seller  is  not  bound  to  communicate  the  existence  of  a 
latent  defect,  such  as  a  hidden  disease  of  an  animal,  unless,  by 
act  or  implication,  he  represents  that  such  defects  do  not  exist.^ 
But  it  is  generally  held  in  this  country  that  the  intentional  non- 
disclosure of  such  a  defect  by  the  seller,  when  he  knows  or  has 
reason  to  know  that  it  is  unknown  to  the  buyer,  is  fraudulent.* 
So  where  premises  leased  are  infected  with  a  contagious  disease, 
or  otherwise  subject  to  a  nuisance  which  is  prejudicial  to  life 
or  health,  it  has  been  held  that  there  is  a  duty  to  disclose  the 
fact,  and  that  concealment  is  a  fraud.** 

Mistake  as  to  Nature  of  Promise  Known  to  Other  Party 

A  mistake  on  the  part  of  one  of  the  parties  to  a  contract,  as 
a  misunderstanding  in  respect  to  the  nature  or  qualities  of  the 
subject-matter,  or  a  mistake  in  fixing  or .  expressing  the  terms, 
not  induced  by  the  conduct  of  the  other  party,  has  as  a  rule  no 
effect  upon  the  contract.^  But  the  law  will  not  allow  one  party 
to  accept  a  promise,  which  he  knows  that  the  other  party  under- 
stands in  a  dififerent  sense  from  that  in  which  he  understands  it.^ 
If  the  mistake  or  misunderstanding  of  the  one  party  as  to  the 
nature  of  the  promise  is  known  to  the  other,  or  if  the  other  has 

8  Ward  V.  Hobbs,  3  Q.  B.  Div.  150,  4  App.  Cas.  13 ;  Beninger  v.  Corwin,  24 
N.  J.  Law,  257 ;  Paul  v.  Hadley,  23  Barb.  (N.  Y.)  521 ;  Morris  v.  Thompson, 
85  111.  16.     See  "Sales,"  Dec.  Dig.  (Key-Xo.)  §  j^l;    Cent.  Dig.  §  8//. 

*  Hoe  V.  Sanborn,  21  N.  Y.  552,  78  Am.  Dec.  163 ;  French  v.  Vining,  102 
Mass.  132,  3  Am.  Rep.  440 ;  Marsh  v.  Webber,  13  Minn.  109  (Gil.  09)  ;  Cecil 
V.  Spurger,  32  Mo.  462,  82  Am.  Dec.  140 ;  Patterson  v.  Kirkland,  34  Miss.  423 ; 
Johnson  v.  Wallower,  18  Minn.  288  (Gil.  262)  ;  Cardwell  v.  McClelland,  3 
Sneed  (Tenn.)  150 ;  Waters  v.  Mattingley,  1  Bibb  (Ky.)  244,  4  Am.  Dec.  631 ; 
Maynard  v.  Maynard,  49  Vt  297;  Paddock  v.  Strobridge,  29  Vt.  470;  Gra- 
ham V.  Stiles,  38  Vt.  578;  Dowling  v.  Lawrence,  58  Wis.  282,  16  N.  W.  552. 
Sale  of  cattle  known  to  be  Infected  with  contagious  disease:  Jeffrey  v.  Bige- 
low,  13  Wend.  (X.  Y.)  518,  28  Am.  Dec.  476;  GRIGSBY  v.  STAPLETON,  94 
Mo.  423,  7  S.  W.  421,  Throckmorton,  Cas.  Contracts,  187.  The  rule  does  not 
apply  if  the  sale  is  "with  all  faults."  West  v.  Anderson,  9  Conn.  107,  21  Am. 
Dec.  737 ;  Whitney  v.  Boardman,  118  Mass.  242.  Otherwise  if  seller  makes 
effort--^  to  prevent  buyer  from  discovering  defects.  West  v.  Anderson,  supra ; 
note  98,  supra.     See  "Sales,"  Dec.  Dig.  (Key-No.)  §  Jil;   Cent.  Dig.  §  84. 

5  Minor  v.  Sharon,  112  Mass.  477,  17  Am.  Rep.  122 ;  Cesar  v.  Karutz,  60  N. 
Y.  229,  19  Am.  Rep.  164;  Cutler  v.  Hamlen,  147  Mass.  471,  18  N.  E.  397,  1 
L.  R.  A.  429.     See  "Sales,"  Dec.  Dig.   {Keg-No.)  §  4I ;    Cent.  Dig.  §  84. 

«  Scott  V.  Littledale,  8  El.  &  Bl.  815;  People's  Bank  v.  Bogart,  81  N.  Y.  101. 
37  Am.  Rep.  481;  Laidlaw  v.  Organ,  2  Wheat.  178,  4  L.  Ed.  214;  Borden  v. 
Railroad  Co.,  113  N.  C.  570,  18  S.  E.  392,  37  Am.  St.  Rep.  632;  Griffin  v. 
O'Neil,  48  Kan.  117,  29  Pac.  143 ;  Seeley  v.  Traction  Co.,  179  Pa.  334,  36  Atl. 
229;  Brown  v.  Levy,  29  Tex.  Civ.  App.  389.  69  S.  W.  255.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  §  93;  Cent.  Dig.  §§  415-419. 

»  Anson,  Cont.  (8th  Ed.)  138. 


278  REALITY   OF   CONSENT  (Cll.  7 

reason  to  know  it,  the  contract  is  voidable.'  Thus  where  a  per- 
son was  sued  for  refusing  to  accept  some  oats  which  he  had 
agreed  to  buy  from  the  plaintiff,  on  the  ground  that  he  had  agreed 
and  intended  to  buy  old  oats,  and  that  those  supplied  were  new, 
the  jury  were  told  that,  if  the  plaintiff  knew  that  the  defendant 
"thought  he  was  buying  old  oats,"  then  he  could  not  recover. 
The  court  of  review,  however,  held  that  this  was  not  enough  to 
avoid  the  sale ;  that  in  order  to  do  so  the  plaintiff  must  have 
known  that  the  defendant  "thought  he  was  being  promised  old 
oats."  It  was  not  knowledge  of  the  misapprehension  of  the  quali- 
ty of  the  oats,  but  knowledge  of  the  misapprehension  of  the  quality 
promised,  which  would  defeat  a  recovery.®  So  where  the  seller, 
intending  to  offer  cattle  for  $261.50,  by  a  slip  of  the  tongue  offered 
them  for  $161.50,  and  the  buyer,  having  good  reason  to  suppose 
that  the  price  named  was  a  mistake,  accepted  the  offer  and  paid 
$20  on  account,  and  the  seller  tendered  back  the  $20,  and  repudi- 
ated the  sale,  it  was  held  that  the  buyer  was  not  entitled  to  main- 
tain replevin.^"  And  where  by  mistake  the  plaintiff  in  compiling 
a  rate  sheet  printed  the  fare  at  $21.25  instead  of  $36.70,  and  the 
defendant,  who  had  discovered  the  mistake,  purchased  tickets  at 
the  printed  price,  it  was  held  that  the  plaintiff  could  rescind. ^^ 

This  subject  is  treated  by  Sir  William  Anson  and  many  other 
writers  under  mistake,  but  most  of  the  courts  of  this  country 
treat  it  as  a  question  of  fraud.  The  latter  classification  would 
seem  the  more  appropriate,  since  the  effect  of  a  mistake  of  the  char- 
acter under  consideration  is  merely  to  render  the  contract  voidable, 
and  not  void. 

8  Smith  V.  Hughes,  L.  R.  6  Q.  B.  597 ;  Thayer  v.  Knote,  59  Kan.  181,  52 
Pac.  433.  Sir  William  Anson  says  "void."  Anson,  Cont.  (8th  Ed.)  138.  See 
"Sales,"  Dec.  Dig.  {Key-No.)  §  36;  Cent.  Dig.  §§  63,  64- 

9  Smith  V.  Hughes,  supra.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  93;  Cent. 
Dig.  §§  U3-U9. 

10  Harran  v.  Foley,  62  Wis.  584,  22  N.  W.  837.  See,  also,  Webster  v.  Cecil, 
30  Beav.  62 ;  Tamplin  v.  Jones,  15  Ch.  D.  221 ;  Gerrard  v.  Frankel,  30  Beav. 
445;  Everson  v.  Granite  Co.,  65  Vt.  658,  27  Atl.  320.  See  "Contracts,"  Dec. 
Dig.  {Key-No.)  §  93;  Cent.  Dig.  §§  415-419. 

11  Shelton  v.  Ellis,  70  Ga.  297.  A  contract  to  furnish  the  government  with 
many  articles  at  stipulated  prices,  among  them  shucks  at  60  cents  per  pound, 
was  unenforceable  as  to  the  shucks,  where  the  government  showed  that  they 
were  worth  from  $12  to  $35  per  ton ;  that  it  was  customary  to  buy  them  by 
the  hundred  weight;  and  that  the  seller  failed  to  strike  out  the  word  "pounds" 
on  the  printed  form  of  proposal,  and  to  insert  "hundred  weight"  instead,, 
though  the  seller  insisted  that  there  was  no  mistake  on  his  part  Hume  v. 
United  States,  132  U.  S.  406,  10  Sup.  Ct.  134,  33  L.  Ed.  393.  See,  also,  Mof- 
fett,  Hodgkins  &  Clarke  Co.  v.  City  of  Rochester,  178  U.  S.  373,  20  Sup.  Ct. 
957,  44  L.  Ed.  1108.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  93;  Cent.  Dig. 
§§  415-419. 


§  139)  FRAUD  279 

Character  of  Representations — Opinion  or  Expectation 

To  constitute  fraud,  the  representation  must  be  of  a  past  or 
existing  fact.  What  has  been  said  in  treating  of  misrepresentation 
is  equally  applicable  here.  A  mere  expression  of  opinion,  belief, 
or  expectation,  however  unfounded,  will  not  invalidate  a  contract, 
nor  give  cause  for  an  action  for  deceit.^* 

If,  for  instance,  the  seller  of  property  says  it  is  worth  so  much, 
this  is  a  mere  expression  of  opinion  upon  which  the  buyer  may 
or  may  not  act,  just  as  he  chooses.^'  So,  also,  where  a  person 
makes  a  false  representation  as  to  the  harvest  which  land  sown 
in  certain  crops  will  produce,^*  or  as  to  the  cubic  contents  of  a 
piece  of  grading  which  he  employs  another  to  do,'^^  or  as  to  what 
it  will  cost  to  build  a  house,^^  these  are  all  mere  expressions  of 
opinion,  and,  as  a  rule,  do  not  amount  to  fraud.^^     A  statement 

12  GORDON  V.  PARMELEB,  2  Allen  (Mass.)  212,  Throckmorton,  Cas.  Con- 
tracts, 189 ;  Gordon  v.  Butler,  105  U.  S.  553,  26  L.  Ed.  11G6 ;  Mooney  v.  Miller, 
102  Mass.  217 ;  Sawyer  v.  Prickett,  19  Wall.  146,  22  L.  Ed.  105 ;  Allen  v.  Hart, 
72  111.  104 ;  Buschman  v.  Codd,  52  Md.  207 ;  Ellis  v.  Audrews,  56  N.  Y.  83,  15 
Am.  Rep.  379;  Chrysler  v.  Cauaday,  90  N.  Y.  272,  43  Am.  Rep.  166;  Beard  v. 
Bliley,  3  Colo.  App.  479,  34  Pac.  271 ;  Montreal  Lumber  Co.  v.  Mihills,  80  Wis. 
540,  50  N.  W.  507 ;  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  8  Sup. 
Ct.  881,  31  L.  Ed.  678 ;  Sheldon  v.  Davidson,  85  Wis.  138,  55  N.  W.  101 ;  Nash 
V.  Trust  Co.,  159  Mass.  437,  34  N.  E.  625;  Reeves  v.  Corning  (C.  C.)  51  Fed. 
774.  But  see  Grim  v.  Byrd,  32  Grat  (Va.)  293,  301,  where  it  is  said,  per 
Staples,  J.:  "But  even  a  matter  of  opinion  may  amount  to  an  affirmation, 
and  be  the  inducement  to  a  contract,  especially  where  the  parties  are  not 
dealing  upon  equal  terms,  and  one  of  them  iias,  or  is  presumed  to  have,  means 
of  information  not  equally  open  to  the  other."  See  ''Contracts,"  Deo.  Dig. 
{Key-So.)  §  93;  Cent.  Dig.  §§  415-419. 

13  Lindsay  Pet.  Co.  v.  Hurd,  L.  R.  5  P.  C.  243 ;  Simar  v.  Canaday,  53  N.  Y. 
298,  13  Am.  Rep.  523 ;  Shanks  v.  Whitney,  66  Vt.  405,  29  Atl.  367 ;  Johnson  v. 
Seymour,  79  Mich.  156,  44  N.  W.  344;  Geddes'  Appeal,  SO  Pa.  442;  Doran  v. 
Eaton,  40  Minn.  35,  41  N.  W.  244;  Belz  v.  Keller  (Ky.)  1  S.  W.  420;  Noetling 
V.  Wright,  72  111.  390;  Lockwood  v.  Fitts,  90  Ala.  150,  7  South.  467;  Gordon 
V.  Butler,  105  U.  S.  553,  26  L.  Ed.  1166;  Cagney  v.  Cuson,  77  Ind.  494;  Lynch 
V.  Murphy,  171  Mass.  307,  50  N.  E.  623.  See  "Sales,"  Dec.  Dig.  (Key-No.)  § 
4S;  Cent.  Dig.  §§  86-100. 

1*  Holton  v.  Noble,  83  Cal.  7,  23  Pac.  58.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  94;  Cent.  Dig.  §§  420-430. 

16  East  V.  Worthington,  88  Ala.  537,  7  South.  189.  See  "Contracts,"  Dec. 
Dig.   (Keg-No.)   §  94;  Cent.  Dig.  §§  420-430. 

18  Sweney  v.  Davidson,  68  Iowa,  3S6,  27  N.  W.  278.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-430. 

IT  Representations  as  to  the  speed  of  a  horse  not  made  as  of  personal 
knowledge.  State  v.  Cas.s,  52  N.  J.  Law,  77,  18  Atl.  972.  Representation  that 
a  stallion  will  not  produce  sorrel  colts.  Scroggin  v.  Wood,  87  Iowa,  497,  54 
N.  W.  437.  Representations  as  to  solvency  and  credit  See  Homer  v.  Perkins, 
124  Mass.  431,  26  Am.  Rep.  077;  Yeager  Milling  Co.  v.  Lawler,  39  La.  Ann.' 
572,  2  South.  398;  Chllds  v.  Merrill,  03  Vt.  403,  22  Atl.  626,  14  L.  R.  A.  264. 


280  REALITY   OF   CONSENT  (Ch.  T 

as  to  the  dimensions  of  land  is  a  statement  of  fact;^*    but  where 
the  boundaries  are  correctly  pointed  out,  a  representation   as  to 
the  area  embraced  therein  is  an  expression  of  opinion.^" 
Same — Statement  of  Intention,  Expectation,  or  Promises 

A  representation  of  fact  is  a  statement  that  a  thing  was  or  is, 
and  does  not,  therefore,  include  expressions  of  intention  or  expec- 
tation, or  promises,  or  other  representations  that  a  thing  shall  be.^° 
Notwithstanding  this,  a  representation  of  intention  may  amount  to 
a  fraudulent  representation.  The  law  makes  a  distinction  between 
a  promise  which  the  promisor,  when  he  makes  it,  intends  to  per- 
form, and  one  which  he  intends  to  break.  In  the  first  case  he  rep- 
resents truly  enough  his  intention  that  something  shall  take  place 
in  the  future,  while  in  the  second  case  he  misrepresents  his  exist- 
ing intention.  He  not  merely  makes  a  promise  which  is  ultimately 
broken,  b^t  when  he  makes  it  he  represents  his  state  of  mind  to 
be  other  than  it  really  it.^'^  It  is  therefore,  as  we  have  already 
seen,  very  generally  held  that  if  a  man  buys  goods,  not  intending  at 
the  time  to  pay  for  them,  he  makes  a  fraudulent  representation." 

Same — Misrepresentation  of  Law 

As  a  rule,  misrepresentation  of  law  does  not  amount  to  a  fraud- 
ulent representation  for  which  an  action  of  deceit  will  lie,  nor  make 

And  see  post,  p.  280.  See  "Contracts,"  Dec.  Dig.  (Key-^'o.)  §  54;  Cent.  Dig. 
§§  420-J,.'iO;  "Fraud,"  Dec.  Dig.  (Key-No.)  §§  11,  13;  Cent.  Dig.  §§  S,  5,  12,  13. 

18  Eichelberger  v.  Mills  Land  &  Water  Co.,  9  Cal.  App.  628,  100  Pae.  117. 
See  "Vendor  and  Purchaser,"  Dee.  Dig.  (Key-No.)  §§  SJf,  113;  Cent.  Dig.  §§ 
39,  201. 

18  GORDON  V.  PARMELEE,  2  Allen  (Mass.)  212,  Throckmorton,  Cas.  Con- 
tracts, 189.  See  "Vendor  and  Purchaser,"  Dec.  Dig.  (Key-No.)  §  34;  Cent. 
Dig.  §  39. 

2  0  Da  we  v.  Morris,  149  Mass.  188,  21  N.  E.  313,  4  L.  R.  A.  158,  14  Am.  St. 
Rep.  404;  Burrell's  Case,  1  Ch.  Div.  552;  Knowlton  v.  Keenan,  146  Mass. 
86,  15  N.  E.  127,  4  Am.  St.  Rep.  282;  Saunders  v.  McClintock,  46  Mo.  App. 
216 ;  Sheldon  v.  Davidson,  85  Wis.  138,  55  N.  W.  161 ;  Lawrence  v.  Gayetty,, 
78  Cal.  126,  20  Pac.  382,  12  Am.  St.  Rep.  29 ;  Haenni  v.  Bleisch,  146  111.  262, 
34  N.  E.  153;  Balue  v.  Taylor,  136  Ind.  368,  36  N.  E.  269;  Birmingham 
Warehouse  &  Elevator  Co.  v.  Land  Co.,  93  Ala.  549,  9  South.  235;  Huber  v. 
Guggenheim  (C.  C.)  89  Fed.  598.  But  see  Williams  v.  Kerr,  152  Pa.  560,  25 
Atl.  618;  Moore  v.  Cross  (Tex.  Civ.  App.)  26  S.  W.  122.  Representation  that 
stock  sold  will  pay  a  certain  dividend.  Robertson  v.  Parks,  76  Md.  118,,  24 
Atl.  411.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  9',;  Cent.  Dig.  §§  420-430. 

21  Old  Colony  Trust  Co.  v.  Traction  Co.  (C.  C.)  89  Fed.  794;  Russ  Lumber 
&  Mill  Co.  V,  Water  Co.,  120  Cal.  521,  52  Pae.  995,  65  Am.  St.  Rep.  186;  South- 
ern Loan  &  Trust  Co.  v.  Gissendaner,  4  Ala.  App.  523,  58  South.  737 ;  Mutual 
Reserve  Life  Ins.  Co.  v.  Seidel,  52  Tex.  Civ.  App.  278,  113  S.  W,  945.  Contra: 
Miller  v.  Sutliff,  241  111.  521,  89  N.  E.  651,  24  L.  R.  A.  (N.  S.)  735.  Be0 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  42O-430. 

2  2  Ante,  p.  274. 


§    139)  FRAUD  281 

a  contract  voidable.  A  contract,  therefore,  cannot,' unless  there  are 
peculiar  circumstances  of  fraud,  or  a  relation  of  trust  and  confi- 
dence between  the  parties,^^  be  rescinded  by  one  party  on  the 
ground  that  the  other  falsely  represented  the  legal  effect  of  the  con- 
tract, or  otherwise  misrepresented  the  law.^*  As  already  stated,  pri- 
vate right  of  ownership,  although  it  be  the  result  also  of  a  matter 
of  law,  is  regarded  as  matter  of  fact,  and  ignorance  of  foreign  laws, 
which  include  the  laws  of  a  sister  state,  is  regarded  as  ignorance 
of  fact,  and  misrepresentation  in  regard  to  either  is  misrepresenta- 
tion of  fact."^ 

Sa  m  e — Materia  lity 

Not  only  must  the  representation  be  of  a  fact,  but  it  must  be  of  a 
material  fact.  A  false  representation  of  an  immaterial  fact,  what- 
ever may  have  been  the  intention,  has  no  effect. ^^  It  may  often 
be  difficult  to  say  when  a  representation  is  material,  but  it  is  prob- 
ably safe  to  say  that  it  is  always  material  if,  had  it  been  known  to 
be  false,  the  contract  would  not  have  been 'entered  into.^^ 

Same — Made  by  Party  to  Contract 

In  order  that  false  representations  may  affect  the  validity  of  a 
contract,  they  must  be  made  by  a  party  to  the  contract,  or  by  his 

2  3  Berry  v.  Whitney,  40  Mich.  71;  Haviland  v.  Willets,  141  N.  Y.  35,  35  N. 
E.  958;  Motherway  v.  Wall,  168  Mass.  333,  47  N.  E.  135.  See  "Contracts," 
Dec.  Dig.   (Key-No.)  §  BJ,;  Cent.  Dig.  §§  420-430. 

24  Upton  V.  Tribilcoek,  91  U.  S.  45,  23  L.  Ed.  203;  Fish  v.  Cleland,  33  111. 
238;  Wheaton  v.  Wheaton,  9  Conn.  96;  Grant  v.  Grant,  56  Me.  573;  Bank 
of  United  States  v.  Daniel,  12  Pet  32,  9  L.  Ed.  989 ;  Pinkham  v.  Gear,  3  N.  H. 
163;  Clem  v.  Railroad  Co.,  9  Ind.  488,  68  Am.  Dec.  653;  ^tna  Ins.  Co.  v. 
Reed,  33  Ohio  St.  293;  Townsend  v.  Cowles,  31  Ala.  428;  Sims  v.  Ferrill,  45 
Ga.  585;  Starr  v,  Bennett,  5  Hill  (N.  Y.)  303;  Moreland  v.  Atchison,  19  Tex. 
303 ;  People  v.  Supervisors,  27  Cal.  655 ;  Dillman  v.  Nadlehoffer,  119  111.  567, 
7  N.  E.  88;  Burk  v.  Johnson,  146  Fed.  209,  76  C.  C.  A.  567.  But  see  Under- 
wood V.  Brockman,  4  Dana  (Ky.)  309,  29  Am.  Dec.  407;  Fitzgerald  v.  Peck, 
4  Litt  (Ky.)  125;  Lowndes  v.  Chisolm,  2  McCord,  Eq.  (S.  C.)  455,  16  Am. 
Dec.  667.  False  representation  by  the  lessor  of  property  that  the  lessee  will 
have  the  right  to  sell  intoxicating  Uquors  therein.  Gormely  v.  Association,  55 
Wis.  350,  13  N.  W,  242.  -See  ''Contracts,"  Dec  Dig.  {Key-No.)  §  94;  Cent. 
Dig.  §§  420~4S0. 

2  5  Ante,  p.  256. 

2  6  Young  V.  Young,  113  111.  430;  Dawe  v.  Morris,  149  Mass.  188,  21  N.  E. 
313,  4  L.  R.  A.  158,  14  Am.  St.  Rep.  404 ;  Geddes  v.  Pennington,  5  Dow.  159 ; 
Davis  V.  Davis,  97  Mich.  419,  56  N.  W.  774;  Nounnan  v.  Land  Co.,  81  Cal. 
1,  22  Pac.  515,  6  L.  R.  A.  219;  Winston  v.  Young,  52  Minn.  1,  53  N.  W.  1015; 
Palmer  v.  Bell,  85  Me.  352,  27  Atl.  250;  Curtiss  v.  Howell,  39  N.  Y,  211.  See 
''Contracts;'  Dec.  Dig.   (Key-No.)  §  94;  Cent.  Dig.  §§  420-430. 

2  7  McAleer  v.  Horsey,  35  Md.  439;  Powers  v.  Fowler,  157  Mass.  318,  32  N. 
E.  166 ;  Hoist  v.  Stewart,  161  Mass.  516,  37  N.  E.  755,  42  Am.  St  Rep.  442. 
Post  p.  288.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420- 
430. 


282  KBALITY   OF   CONSENT  (Ch.  7 

authority.  A  party  to  a  contract  may  not  have  it  set  aside  because 
of  the  fraud  of  a  third  person,  not  the  agent  of  the  other  party,  nor 
acting  in  collusion  with  him.^* 

Right  to  Rely  on  Statements 

In  order  that  a  person  may  be  entitled  to  rescind  or  maintain  an 
action  for  deceit,  the  representations  must  have  been  of  such  a 
character,  and  must  have  been  made  under  such  circumstances, 
that  he  had  a  right  to  rely  on  them.  Representations,  for  instance, 
amounting  merely  to  commendatory  expressions,  or  exaggerated 
statements  as  to  value,  or  prospects,  or  the  like,  as  where  a  seller 
puffs  up  the  value  and  quality  of  his  goods,  or  a  man,  to  induce  an- 
other to  contract  with  him,  holds  out  flattering  prospects  of  gain, 
are  not  regarded  as  fraudulent.^' 

Simplex  commendatio  non  obligat.  As  we  have  seen,  the  buyer 
of  property  is  not  justified  in  relying  on  the  seller's  representation 
as  to  its  value.^°  Some  of  the  courts  hold,  however,  that  a  state- 
ment by  the  seller  of  property  that  he  gave  so  much  for  it  is  a  rep- 
resentation of  fact  upon  which  the  buyer  may  rely,  and  that,  if  it  is 
knowingly  false,  it  amounts  to  fraud."  Other  courts  hold  that 
such  a  statement  is  merely  a  commendatory  expression,  on  which 
the  buyer  must  not  rely.^^  But,  even  where  the  statement  would 
ordinarily  be  regarded  as  a  mere  commendatory  expression  ^'  or  ex- 

2  8  Cason  V.  Cason,  116  Tenn.  173,  93  S.  W.  89.  See  "Contracts,"  Dec.  Dig. 
{Eev-^'o.)  §  9-',;  Cent.  Dig.  §§  420-Jf30. 

2  9  GORDON  V.  PARMELEE,  2  Allen  (Mass.)  212,  Throckmorton  Cas.  Con- 
tracts, 189 ;  Deming  v.  Darling,  148  Mass.  504,  20  N.  E.  107,  2  D.  R.  A,  743 ; 
Hughes  V.  Manufacturing  Co.,  34  Md.  aiS ;  Kimball  v.  Bangs,  144  Mass.  321, 
11  N.  E.  113;  Lockwood  v.  Fitts,  90  Ala.  150,  7  South.  467;  Southern  Develop- 
ment Co.  V.  Silva,  125  U.  S.  247,  8  Sup.  Ct.  881,  31  L.  Ed.  678;  Dillman  v. 
Nadlehoffer,  119  111.  567,  7  N.  E.  88 ;  Jackson  v.  Collins,  39  Mich.  557 ;  Bums 
V.  Mahannah,  39  Kan.  87,  17  Pac.  319;  Patten  v.  Glatz  (C.  C.)  87  Fed.  283; 
Macklem  v.  Fales,  130  Mich.  66,  89  N.  W.  581  (representations  as  to  future 
possibilities).  See  the  cases  cited  in  notes  56,  12,  supra.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  9J,;    Cent.  Dig.  §§  J,20-4SO. 

30  Ante,  p.  279. 

31  Sandford  v.  Handy,  23  Wend.  (N.  Y.)  260;  Pendergast  v.  Reed,  29  Md. 
398.  96  Am.  Dec.  539;  Salm  v.  Israel,  74  Iowa,  314,  37  N.  W.  387;  Weidner  v. 
Phillips,  39  Hun  (N.  Y.)  1 ;  Ives  v.  Carter,  24  Conn.  392 ;  Strickland  v.  Gray- 
bill,  97  Va.  602,  34  S.  E.  475.  See  "Sales,"  Dec.  Dig.  {Key-No.)  §  SS;  Cent. 
Dig.  §§  65-85. 

32  Tuck  V.  Downing,  76  111.  71;  Medbury  v.  Watson,  6  Mete.  (Mass.)  246,  39 
Am.  Dec.  726 ;  Cooper  v.  Lovering,  106  Mass.  77 ;  Hemmer  v.  Cooper,  8  Allen 
(Mass.)  334;  Bishop  v.  Small,  63  Me.  12;  Holbrook  v.  Connor,  60  Me.  578,  11 
Am.  Rep.  212 ;  Sowers  v.  Parker,  59  Kan.  12,  51  Pac.  8.88.  See,  also.  Cole  v. 
Smith,  26  Colo.  506,  58  Paa  1086.  See  "Sales,"  Dec.  Dig.  {Key-No.)  §  SS;  Cent. 
Dig.  §§  65-85. 

33  Teachout  v.  Van  Hoesen,  76  Iowa,  113,  40  N.  W.  96,  1  L.  R.  A,  664,  14 


§  139)  FRAUD  283 

pression  of  opinion,'*  the  circumstances  may  be  such  as  to  justify 
the  other  party  in  relying  on  it,  as,  for  instance,  where  the  parties 
do  not  meet  on  equal  terms  by  reason  of  the  possession  of  special 
knowledge  by  the  party  making  the  statement,  or  there  is  a  relation 
of  confidence  between  them.  In  such  a  case  the  statement  may  be 
fraudulent. 

Same — Credulity  and  Negligence  of  Party  Defrauded 

It  would  seem  upon  principle  that  a  person  cannot  avoid  the  ef- 
fect of  his  fraudulent  misrepresentation  on  the  ground  of  the  cred- 
ulity of  the  injured  party  or  of  his  negligence  in  failing  to  ascertain 
the  facts,  and  many  cases  so  hold.^^  Thus  it  is  very  generally  held 
that  a  man  may  act  upon  a  representation  of  fact,  although  means 
of  obtaining  knowledge  are  at  hand  and  open  to  him.*'     "Every 

Am.  St  Eep.  206;  Hauk  v.  Brownell,  120  111.  161,  11  N.  E.  416;  Jackson  v. 
Collins,  39  Mich.  557 ;  Paetz  v.  Stoppleman,  75  Wis.  510,  44  N.  W.  S34 ;  Chrys- 
ler V.  Canaday,  90  N.  Y.  272,  43  Am.  Eep.  166;  Stoney  Creek  Woolen  Co.  v. 
Smalley,  111  Mich.  321,  69  N.  W.  722 ;  Horton  v.  Lee,  106  Wis.  439,  82  N.  W. 
360.    See  "Sales,"  Dec.  Dig.  (Key-No.)  §  SS;   Cent.  Dig.  §§  65-85. 

34  Hedin  v.  Institute,  02  Minn.  146,  61  N.  W.  158,  35  L.  R.  A,  417,  54  Am. 
St.  Rep.  628 ;  Hicks  v.  Stevens,  121  111.  186,  11  N.  E.  241 ;  Robbins  v.  Barton, 
50  Kan.  120,  31  Pac.  686;  Vilett  v.  Moler,  82  Minn.  12,  84  N.  W.  452.  See 
"Sales,"  Dec.  Dig.  (Key-No.)  §  S8;  Cent.  Dig.  §§  65-85. 

3  5  Redgrave  v.  Hurd,  20  Ch.  Div.  1;  Jackson  v.  Collins,  39  Mich.  557;  Ken- 
dall V.  Wilson,  41  Vt.  567 ;  Chamberlin  v.  Fuller,  59  Vt.  247,  9  Atl.  832 ;  Lin- 
ington  V.  Strong,  107  111.  295 ;  Cottrill  v.  Krum,  100  Mo.  397,  13  S.  W.  753,  18 
Am.  St  Rep.  549 ;  Warder,  Bushnell  &  Glessner  Co.  v.  Whitish,  77  Wis.  430,  46 
N.  W.  540 ;  Sutton  v.  Morgan,  158  Pa.  204,  27  Atl.  894,  38  Am.  St  Rep.  841 ; 
McGibbons  v.  Wilder,  78  Iowa,  531,  43  N.  W.  520;  Erickson  v.  Fisher,  51 
Minn.  300,  53  N.  W.  638 ;  Blacknall  v.  Rowland,  108  N.  C.  554,  13  S.  E.  191 ; 
Fargo  Gas  &  Coke  Co.  v.  Electric  Co.,  4  N.  D.  219,  59  N.  W.  1066,  37  L.  R.  A. 
593 ;  Speed  v.  HoUingsworth,  54  Kan.  436,  38  Pac.  496 ;  Wilson  v.  Carpenter's 
Adm'r,  91  Va.  183,  21  S.  E.  243,  50  Am.  St  Rep.  824;  Strand  v.  Griffith,  97 
Fed.  854,  38  C.  C.  A.  444 ;  Leonard  v.  Southern  Power  Co.,  155  N.  C.  10,  70 
S.  E.  1061;  Central  Ry.  Co.  of  Venezuela  v.  Kisch,  L.  R.  2  H.  L.  99,  120; 
Crompton  v.  Beedle,  83  Vt  287,  75  Atl.  331,  30  L.  R.  A.  (N.  S.)  748,  Ann.  Cas. 
1912A,  399  (where  it  is  said,  per  Haselton,  J. :  "Any  different  doctrine,  car- 
ried to  its  logical  conclusion,  would  facilitate  transactions  in  gold  bricks,  salted 
mines,  bogus  diamonds  as  real,  fac  similes  as  originals,  and  would  permit  a 
variety  of  things  destructive  of  commercial  integrity").  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  94;   Cent.  Dig.  §§  420-JtSO. 

3  6Gammill  v.  Johnson,  47  Ark.  335,  1  S.  W.  610;  Redding  v.  Wright  49 
Minn.  322,  51  N.  W.  1056;  Hanscom  v.  Drullard,  79  Cal.  234,  21  Pac.  736; 
Clark  v.  Ralls  (Iowa)  24  N.  W.  567 ;  Ledbetter  v.  Davis,  121  Ind.  119,  22  N.  E. 
744 ;  Rohrof  v.  Schulte,  154  Ind.  183,  55  N.  E.  427 ;  Carpenter  v.  Wright  52 
Kan.  221,  34  Pac,  798 ;  Wheeler  v.  Baars,  33  Fla.  696,  15  South.  584 ;  Lovejoy 
V.  Isbell,  73  Conn.  368,  47  Atl.  682.  Negligence  is,  of  course,  no  defense,  in  the 
case  of  negotiable  paper,  against  Innocent  purchasers.  Ante,  p.  247.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  D.',;  Cent.  Dig.  §§  420-430;  "Fraud,"  Dec. 
Dig.  (Key-No.)  §§  22,  23;   Cent.  Dig.  §§  19-23. 


284  REALITY   OF  CONSENT  (Ch.  7 

contracting  party  has  an  absolute  right  to  rely  on  the  express  state- 
ment of  an  existing  fact,  the  truth  of  which  is  known  to  the  oppo- 
site party  and  unknown  to  him,  as  the  basis  of  a  mutual  engage- 
ment, and  he  is  under  no  obligation  to  investigate  and  verify  state- 
ments, to  the  truth  of  which  the  other  party  to  the  contract  has 
deliberately  pledged  his  faith."  '^  On  the  other  hand,  by  many 
courts  it  is  laid  down  in  broad  terms  that  if  the  means  of  knowledge 
are  at  hand  and  equally  available  to  both  parties,  and  the  subject 
of  the  contract  is  open  to  the  inspection  of  both,  the  party  to  whom 
the  representation  is  made  will  not  be  heard  to  say  that  he  has  been 
deceived  thereby,  if  he  has  not  availed  himself  of  such  means  of 
knowledge.'®  This  conflict  of  authority  is  illustrated  by  the  oppo- 
site decisions  which  have  been  reached  in  cases  involving  the  lia- 
bility of  a  person  who  has  been  fraudulently  induced  to  execute  an 
instrument  upon  misrepresentation  of  the  other  party  as  to  its  char- 
acter or  terms.  Doubtless  a  person  who  fails  to  read  an  instru- 
ment before  signing  it  is  wanting  in  ordinary  prudence,  but  it  has 
been  held  by  many  courts  that  he  is  not  precluded  thereby  from 
asserting  the  invalidity  of  the  contract  as  against  the  party  who 

87  Mead  v.  Bunn,  32  N.  Y.  275.  But  see  Long  v.  Warren,  68  N.  Y.  426; 
Schumaker  v.  Mather,  133  N.  Y.  590,  30  N.  E.  755,  757.  See  ''Contracts,"  Dec. 
Dig.  {Key-'No.)  §  94;   Cent.  Dig.  §§  Jf20-],S0. 

3  8  Slaughter's  Adm'r  v.  Gerson,  13  Wall.  379,  20  L.  Ed.  627;  Salem  Indla- 
Rubber  Co.  v.  Adams,  23  Pick.  (Mass.)  256,  265;  Poland  v.  Brownell,  131 
Mass.  138,  41  Am.  Rep.  215 ;  Brady  v.  Finn,  162  Mass.  260,  38  N.  E.  506 ;  Palm- 
er V.  Bell,  85  Me.  352,  27  Atl.  250,  251 ;  Schumaker  v.  Mather,  133  N.  Y.  590, 
30  N.  E.  755,  757 ;  Washington  Cent.  Imp.  Co.  v.  Newlands,  11  Wash.  212,  39 
Pac.  366 ;  South  Milwaukee  Boulevard  Heights  Co.  v.  Harte,  95  Wis.  592,  70 
N.  W.  821.  See,  also,  Hingston  v.  L.  P.  &  J.  A.  Smith  Co.,  114  Fed.  294,  52 
C.  C.  A.  206. 

"The  requirement,  as  It  has  been  worked  out,  does  not  call  for  more  than 
reasonable  diligence  (Hoist  v.  Stewart,  161  Mass.  516,  522,  37  N.  E.  7.5.J,  42 
Am.  St  Rep.  442;  Brown  v.  Leach,  107  Mass.  364,  368;  Nowlan  v,  Cuin,  3 
Allen  [Mass.]  261,  264)  ;  and  distance  or  other  slight  circumstances  have  been 
held  sufficient  to  warrant  leaving  the  question  to  the  jury  (Hoist  v.  Stewart, 
161  Mass.  516,  522,  523,  37  N.  E.  755,  42  Am.  St.  Rep.  442).  See  Burns  v.  Lane, 
138  Mass.  350,  355,  356 ;  Whiteside  v.  Brawley,  152  Mass.  133,  24  N.  E.  1088. 
The  matter  may  have  been  confused  a  little  by  not  distinguishing  between 
sellers'  talk  as  to  the  value  and  the  like,  where  the  rule  is  absolute  in  or- 
dinary cases  that  the  buyer  must  look  out  for  himself,  and  representation  of 
facts  concerning  which  even  sellers  may  be  held  liable  for  fraud,  and  as  to 
which  the  buyers  may  be  warranted  in  reljing  wholly  on  the  seller's  word. 
The  notion  that  the  buyer  must  look  out  for  himself  sometimes  has  been 
pressed  a  little  too  strongly  into  the  latter  class  of  cases."  Per  Holmes,  J., 
in  Whiting  v.  Price,  172  Mass.  240,  51  N.  E.  1084,  70  Am.  St.  Rep.  2G2.  See 
''Contracts,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-430;  "Fraud,"  Dec. 
Dig.  {Key-No.)  §§  22,  23;   Cent.  Dig.  §§  19-23. 


§    139)  FEADD  285 

has  thus  procured  the  execution  by  fraud."  By  other  courts  it  has 
been  held  that  the  party  so  signing  is  precluded  by  his  negligence 
from  asserting  the  invalidity  of  the  contract.** 

Knowledge  of  Falsity — Recklessness 

A  representation  is  fraudulent  if  it  is  made  with  knowledge  of 
its  falsity  or  without  belief  in  its  truth.  The  mere  absence  of  be- 
lief is  enough,  and  hence,  if  a  man  makes  a  misrepresentation  in 
reckless  disregard  whether  it  is  true  or  not,  the  representation  is 
fraudulent,  for  he  can  have  no  belief  in  the  truth  of  what  he  as- 
serts.*^ And  if  a  man  falsely  asserts  a  fact  as  true  of  his  own 
knowledge  when  he  has  no  knowledge,  it  is  none  the  less  fraudu- 
lent because  he  believes  it  to  be  true.  Probably  it  is  the  prevail- 
ing rule  in  this  country  that  an  unqualified  statement  of  a  material 
fact  susceptible  of  actual  knowledge  is  to  be  taken  as  a  represen- 
tation as  of  one's  own  knowledge,  and  that  such  a  representation  if 
false  is  fraudulent,  notwithstanding  belief  in  its  truth. *^     In  Eng- 

3  9  Alfred  Shrimpton  &  Sons  v.  Philbrick,  53  Minn.  366,  55  N.  W.  551;  Mq- 
Ginn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St.  Rep.  848;  Burroughs 
V.  Guano  Co.,  81  Ala.  255, 1  South.  212 ;  Smith  v.  Smith,  134  N.  Y.  62,  31  N.  E. 
258,  30  Am.  St.  Rep.  617 ;  Kingman  v.  Reinemer,  166  lU.  208,  46  N.  E.  786 ; 
Alexander  v.  Brogley,  63  N.  J.  Law,  307,  43  Atl.  888;  Woodbridge  v.  De  Witt. 
51  Neb.  98,  70  N.  W.  506 ;  McBride  v.  Publishing  Co.,  102  Ga.  422,  30  S.  K  999 ; 
Shook  V.  Puritan  Mfg.  Co.,  75  Kan.  301,  89  Pac.  653,  8  L.  R.  A.  (N.  S.)  1043 ; 
Birdsall  v.  Coon,  157  Mo.  App.  439,  139  S.  W.  243,  '  See,  also,  Louisville  &  N. 
R.  Co.  V.  Cooper  (Ky.)  50  S.  W.  144;  Story  v.  Gammell,  68  Neb.  709,  94  N.  W. 
982,    See  "Contracts,"  Dec.  Dig.  (Eeu-No.)  §  QJ/;  Cent.  Dig.  §§  Ji20-4S0. 

40  Taylor  v.  Fleckenstein  (C,  C.)  30  Fed.  99;  Keller  v.  Orr,  106  Ind.  406, 
7  N.  E.  195 ;  Wallace  v.  Railway  Co.,  67  Iowa,  547,  25  N.  W.  772 ;  Dowagiac 
Mfg.  Co.  V.  Schroeder,  108  Wis.  109,  84  N.  W.  14 ;  Kimmell  v.  Skelly,  130  Cal. 
555,  62  Pac.  1067 ;  Binford  v.  Bruso,  22  Ind.  App.  512,  54  N.  B.  146.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  94;   Cent.  Dig.  §§  420-^30. 

*i  Per  Lord  Cairns,  in  Reese  River  Min.  Co.  v.  Smith,  L.  R,  4  H.  L.  79; 
STIMSON  V.  HELPS,  9  Colo.  33,  10  Pac.  290,  Throckmorton  Cas.  Contracts, 
193 ;  Fisher  v.  Mellen,  103  Mass.  503 ;  Cole  v.  Cassidy,  138  Mass.  437,  52  Am. 
Rep.  284;  Stone  v.  Denny,  4  Mete.  (Mass.)  151;  Humphrey  v.  Merriam,  32 
Minn.  197,  20  N.  W.  138 ;  Bennett  v.  Judson,  21  N.  Y.  238 ;  Marsh  v,  Falker, 
40  N.  Y.  5G2;  Allen  v.  Hart,  72  111.  104;  Case  v.  Ayers,  65  111.  142;  Stone  v. 
Covell,  29  Mich.  359;  Bristol  v.  Braid  wood,  28  Mich.  191;  Walsh  v.  Morse,  80 
Mo.  568;  Cotzhausen  v.  Simon,  47  Wis.  103,  1  N.  W.  473;  Indianapolis,  P.  & 
C.  R.  Co.  v.  Tyng,  63  N.  Y.  653 ;  Cabot  v.  Christie,  42  Vt  121,  1  Am.  Rep.  313 ; 
Ruff,  V.  Jarrett,  94  111.  475 ;  Cooper  v.  Schlesinger,  111  U.  S.  148,  4  Sup.  Ct. 
360,  28  L.  Ed.  382 ;  Bower  v.  Fenn,  90  Pa.  359,  35  Am.  Rep.  6G2 ;  Leavitt  v. 
Sizer,  35  Neb.  80,  52  N.  W.  832 ;  Krause  v,  Busacker,  105  Wis.  350,  81  N,  W. 
406.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-430; 
"Fraud,"  Dec.  Dig.  (Key-No.)  §  13;  Cent.  Dig.  §§  5^. 

4  2  Litchfield  v.  Hutchinson,  117  Mas.s.  197;  Chatham  Furnace  Co.  v.  Mof- 
fatt,  147  Mass.  403,  18  N.  E.  168,  9  Am.  St  Rep.  727  (Cf.  Goodwin  v.  Trust 
Co.,  152  Mass.  189,  25  N.  E.  100)  ;  Kirkpatrick  v.  Reeves,  121  Ind.  280,  22 
N,  E.  139;   Bullitt  v.  Farrar,  42  Minn.  8,  43  N.  W.  566,  6  L.  R.  A.  149,  18  Am. 


286  REALITY   OF  CONSENT  (Ch.  7 

land,  on  the  other  hand,  and  in  some  states  it  is  held  that  a  state- 
ment made  in  the  honest  belief  that  it  is  true  is  not  fraudulent,  not- 
withstanding absence  of  reasonable  grounds  for  believing  it  to  be 
true.*^  The  absence  of  such  grounds  can  only  go  to  show  that  the 
belief  was  not  entertained.** 

The  fact  that  the  party  making  the  representation  professed  to 
rely  on  the  representations  of  others,  and  gave  the  source  of  his 
information,  is  immaterial,  if  he  knew,  or  had  reason  to  believe, 
that  they  were  untrue.*' 

Intention 

The  representation  must  have  been  made  with  the  intention  that 
it  should  be  acted  upon  by  the  injured  party.*'  Another  statement 
of  this  rule  is  that  the  representation  must  be  made  as  part  of  the 
same  transaction.*^* 

St.  Rep.  485;  Montreal  Lnmber  Co.  v.  Mihills,  80  Wis.  540,  50  N.  W.  507 ; 
Cabot  V.  Christie,  42  Vt.  121,  1  Am.  Rep.  313 ;  Knappen  r.  Freeman,  47  Minn. 
491,  50  N.  W.  533;  State  v.  Cass,  52  N.  J.  Law,  77,  18  Atl.  972;  Hamlin  v. 
Abell,  120  Mo.  188,  25  S.  W.  516 ;  Rothschild  v.  Mack,  115  N.  Y.  1,  21  N.  E.  726 ; 
Hadcock  v.  Osmer,  153  N.  Y.  604,  47  N.  E.  923 ;  Braley  t.  Powers,  92  Me.  203, 
42  Atl.  302 ;  Walters  v.  Eaves,  105  Ga.  584,  32  S.  E.  609 ;  Simon  v.  Rubber  Shoe 
Co.,  105  Fed.  573,  44  C.  C.  A,  612,  52  L.  R.  A.  745 ;  New  London  Water  Com'rs 
V.  Robbins,  82  Conn.  623,  74  Atl.  938;  Tolley  v.  Poteot.  62  W.  Va.  231,  57  S. 
E.  811 ;  Grim  v.  Byre,  32  Grat.  (Va.)  293.  The  fraud  in  such  a  case  "consists 
in  stating  that  the  party  knows  the  thing  to  exist  when  he  does  not  know  it 
to  exist;  and,  if  he  does  not  know  it  to  exist,  he  must  ordinarily  be  deemed 
to  know  that  he  does  not.  Forgetfuluess  of  its  existence  after  a  former 
knowledge,  or  a  mere  belief  of  its  existence,  will  not  warrant  or  excuse  a 
statement  of  actual  knowledge."  Chatham  Furnace  Co.  v.  Moffatt,  supra.  And 
see  Alvarez  v.  Brannan,  7  Cal.  503,  68  Am.  Dec.  274.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-430;  "Fraud,"  Dec.  Dig.  (Key-No.)  § 
13;   Cent.  Dig.  §§  S-6. 

43  Derry  v.  Peek,  14  App.  Cas.  337;  Merwln  v.  Arbuckle,  81  111.  501;  Cox  v. 
Highley,  100  Pa.  249;  Lamberton  v.  Dunham,  165  Pa.  129,  30  Atl.  716;  Wil- 
cox V.  University,  32  Iowa,  367;  Lord  v.  Goddard,  13  How.  198,  14  L.  Ed. 
Ill ;  Pettigi-ew  v.  Chellis,  41  N.  H.  95 ;  Scroggin  v.  Wood,  87  Iowa,  497,  54 
N.  W.  437 ;  Sylvester  v.  Henrich,  93  Iowa,  4S9,  61  N.  W.  942 ;  Morton  v.  Scull, 
23  Ark.  289;  Farmers'  Stock  Breeding  Ass'n  v.  Scott,  53  Kan.  534,  36  Pac. 
978.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  94;   Cent.  Dig.  §§  420-430. 

4  4  Anson,  Cont.  (Sth  Ed.)  172. 

4  5  Hanscom  v.  Drullard,  79  Cal.. 234,  21  Pac.  736.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  94;  Cent.  Dig.  §§  420-480;  "Fraud,'"  Dec.  Dig.  (Key-No.)  §  22; 
Cent.  Dig.  §§  19-23. 

46  Buschman  v.  Codd,  52  Md.  202;  Humphrey  v.  Merriam,  32  Minn.  197,  20 
N.  W.  138 ;  Bach  v.  Tuck,  57  Hun,  588,  10  N.  Y.  Supp.  884 ;  Carter  v.  Har- 
den, 78  Me.  528,  7  Atl.  392 ;  Thoi-p  v.  Smith,  18  Wash.  277,  51  Paa  381.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  420-430;  "Fraud,"  Dec 
Dig.  (Key-No.)  §  4;  Cent.  Dig.  §  2. 

4T  Pollock,  Cont  (3d  Ed.)  545;  Barnett  v.  Barnett,  83  Va.  504,  2  S.  E.  733. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  94;   Cent.  Dig.  §§  420-430. 


§  139)  FRAUD  287 

The  representation  need  not,  indeed,  have  been  made  to  the  in- 
jured party  himself.  If  a  person,  desiring  to  enter  into  a  con- 
tract with  another,  should  make  a  representation  to  a  third  person 
with  the  intention  that  it  should  reach  the  ears  of  such  other  per- 
son, and  be  acted  upon  by  him,  in  entering  into  the  contract,  this 
would  constitute  a  fraudulent  misrepresentation  equally  as  if  it  had 
been  made  to  the  other  party.*^  Where  a  gun  was  sold  to  a  man 
for  the  use  of  himself  and  sons,  the  seller  falsely  representing  that 
it  had  been  made  by  a  certain  maker,  and  was  a  good,  safe,  and 
secure  gun,  it  was  held  that  a  son  of  the  buyer  who  was  injured 
by  the  gun's  exploding  could  sue  the  seller  for  deceit.  In  that  case 
it  was  argued  that  the  defendant  could  not  be  held  liable  to  the 
plaintiff  for  a  representation  not  made  to  him;  but  the  court  held 
that  inasmuch  as  the  gun  was  sold  to  the  father  to  be  used  by  the 
plaintifif,  and  there  was  a  false  representation  to  efiFect  the  sale,  and 
"as  there  was  fraud,  and  damage  the  result  of  that  fraud,  not  from 
an  act  remote  and  consequential,  but  one  contemplated  by  the  de- 
fendant at  the  time  as  one  of  its  results,"  the  defendant  was  lia- 
ble.''® So,  also,  where  a  merchant  makes  a  false  statement  as  to 
his  financial  responsibility  to  a  mercantile  agency  for  the  purpose 
of  procuring  credit,  and  customers  of  the  agency,  in  reliance  there- 
on, give  him  credit,  and  are  defrauded,  they  may  maintain  an  ac- . 
tion  of  deceit  against  him,  or  avoid  their  contract  with  him  on  tlie 
ground  of  fraud."*'  •    .^ 

The  representation,  however,  must  have  been  made  witljjpre'  in- 
tention that  it  should  be  acted  upon  by  the  injured  party  in  the 
manner  that  occasions  the  injury.*^  Thus,  where  the  directors  of 
a  company  made  false  statements  in  the  prospectus  of  the  company, 
which  would  have  made  them  liable  to  the  original  allotters  of 

*8  Langridge  v.  Levy,  2  Mees.  &  W.  519;  Snow  v.  Judson,  38  Barb.  (N.  Y.) 
210;  Benton  v.  Pratt,  2  Wend.  (N.  T.)  385,  20  Am.  Dec.  623;  Chubbuck  v.. 
Cleveland,  37  Minn.  466,  35  K  W.  362,  5  Am.  St  Rep.  864 ;  Waterbury  v.  An- 
drews, 67  Mi.h.  281,  34  N.  W.  575;  Hubbard  v.  Weare,  79  Iowa,  678,  44  N. 
W.  915.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  94;  Cent.  Dig.  §§  ^20-430. 

48  Langridge  V.  Levy,  2  Mees.  &  W.  519.  See  "Sales,"  Dec.  Dig.  (Key-No.)  § 
40;   Cent.  Dig.  §§  79-S5. 

60  Eaton,  Cole  &  Burnham  Co.  v.  Avery,  83  N.  T.  31,  38  Am.  Rep.  389; 
Mooney  v.  Davis,  75  Mich.  188,  42  N.  W.  802,  13  Am.  St  Rep.  425 ;  Furry  v. 
O'Connor,  1  Ind.  App.  573,  28  N.  E.  103 ;  Hinchman  v.  Weeks,  85  Mich.  535, 
48  N.  W.  790 ;  Gainesville  Nat  Bank  v.  Bramberger,  77  Tex.  48,  13  S.  W.  959, 
19  Am.  St  Rep.  738;  P.  Cox  Shoe  Co.  v.  Adams,  105  Iowa,  402,  75  N.  W. 
316;  STEVENS  v.  LUDLUM,  46  Minn.  160,  48  N.  W.  771,  13  L.  R.  A.  270,  24 
Am.  St  Rep.  210,  Throckmorton  Cas.  Contracts,  192.  See  "Sales,"  Dec.  Dig. 
(Key-No.)  §§  46,  41;    Gent.  Dig.  §§  95,  96. 

61  Barry  v.  Crosky,  2  Johns.  &  IL  L  See  ''Fraud,"  Dec.  Dig.  (Key-No.)  5§ 
21,  22;    Cent.  Dig.  §§  9-23. 


288  REALITY   OF   CONSENT  (Ch.  7 

shares,  they  were  held  not  to  be  liable  to  persons  who  subsequent- 
ly purchased  shares  which  came  into  the  market,  on  the  ground 
tiiat  their  intention  to  deceive  could  not  be  supposed  to  extend  be- 
yond the  original  applicants  for  shares/^  The  directors  in  such  a 
case  would  be  liable  to  the  original  applicants  for  shares,  relying 
on  the  prospectus." 

Same — Dishonesty  of  Motive 

If  a  person  makes  a  representation  which  was  fraudulent  as  has 
been  above  explained,  it  is  immaterial  that  he  may  not  have  been 
actuated  by  any  dishonest  motive.  If  a  man  chooses  to  make  such 
assertions,  hoping  or  even  believing  that  all  will  turn  out  well,  he 
cannot  escape  the  results  of  his  fraud  by  showing  the  excellence 
of  his  motives.'*  Thus,  where  a  person  accepted  a  bill  of  exchange 
drawn  on  another  person,  and  falsely  represented  that  he  had  au- 
thority from  that  other  to  do  so,  he  was  held  liable  in  an  action  of 
deceit  brought  against  him  by  an  indorsee,  the  acceptance  having 
been  repudiated  by  the  drawee  and  the  bill  dishonored;  and  the 
fact  that  the  defendant  honestly  believed  that  the  acceptance  would 
be  sanctioned  by  the  drawee,  and  the  bill  paid,  was  held  immate- 
rial.^"^ 

Representation  must  Deceive 

A  false  representation,  to  constitute  fraud,  must  actually  deceive; 
that  is,  it  must  be  relied  on  by  the  other  party,  and  must  induce  him 
to  act  to  his  prejudice.     If  it  is  not  believed,  or  the  party  disregards 

52  Peek  V.  Gumey,  L.  R.  6  H.  L.  377.  410.  And  see  Nash  v.  Trust  Co.,  159 
Mass.  437,  S4  N.  E.  625;  Davidson  v.  Nichols,  11  Allen  (Mass.)  514.  It  has 
been  held  that  it  could  not  be  said,  as  a  matter  of  law,  that  false  representa- 
tions concerning  the  value  of  certain  stock,  by  which  a  person  was  induced  to 
buy,  may  not  have  continued  In  his  mind,  and  induced  him  to  buy  more 
of  the  stock  a  year  later.  Reeve  v.  Dennett,  ]4.~)  Mass.  23,  11  N.  E.  938. 
See  "Corporations"  Dec.  Dig.  {Key-'So.)  §  80;    Cent.  Dig.  §§  2J,Jf-2G-k. 

6s  Reese  River  Min.  Co.  v.  Smith,  4  H.  L.  Cas.  G-4 ;  Vreeland  v.  Stone  Co., 
29  N.  J.  Eq.  188.  See  ''Corporations,''  Dec.  Dig.  {Key-So.)  §  80;  Cent.  Dig. 
§§  2U-26J,. 

B4  Polhill  v.  Walter,  3  Barn.  &  Adol.  114.  A  buyer  of  goods  cannot  avoid 
the  effect  of  knowingly  false  stfttements  as  to  his  financial  condition  by  show- 
ing that  he  intended  and  expected  to  pay  for  them.  Judd  v.  Weber,  55  Conn. 
267,  11  Atl.  40.  See,  also,  ant«,  p.  274.  Although  the  maker  of  the  representa- 
tion believes  it  to  be  true,  if  he  discovers  that  it  is  false  before  it  is  acted 
on,  and  does  not  disclose  the  fact,  he  is  guilty  of  fraud.  Loewer  v.  Harris, 
57  Fed.  368,  6  C.  C.  A.  394;  Guilford  School  Tp.  v.  Roberts,  28  Ind.  App.,3o5. 
62  N.  E.  711.  See  "Contracts;'  Dec.  Dig.  {Key-So.)  %  9h'  Cent.  Dig.  §§  PO- 
4S0;   "Fraud,"  Dec.  Dig.  (Key-No.)  §  IS;    Cent.  Dig.  §§  S-5. 

osrolhill  v.  Walter,  3  Bam.  &  AdoL  114.  See  "Fraud,"  Dec.  Dig.  (Kc}/- 
No.)   §  13;    Cent.  Dig.  §§  S-J. 


§  139)  FRAUD  289 

it,  and  makes  inquiries  for  himself,  there  is  no  fraud."  In  a  lead- 
ing case  on  this  subject  it  appeared  that  the  defendant  had  bought 
a  cannon  from  the  plaintifif,  having  a  defect  in  it  which  rendered 
it  worthless,  and  the  plaintiff  had  endeavored  to  conceal  the  defect 
by  inserting  a  metal  plug  in  the  weak  spot.  The  defendant  never 
inspected  the  cannon.  He  accepted  it,  and,  in  using  it,  it  burst. 
It  was  held  that  the  attempted  fraud,  having  had  no  operation  upon 
the  mind  of  the  defendant,  did  not  exonerate  him  from  paying  for 
the  gun.  "If,"  said  the  court,  "the  plug  which  it  was  said  was  put 
in  to  conceal  the  defect  had  never  been  there,  his  position  would 
have  been  the  same ;  for,  as  he  did  not  examine  the  gun,  or  form 
any  opinion  as  to  whether  it  was  sound,  its  condition  did  not  af- 
fect him."  "^  If  the  representation  was  one  calculated  to  induce 
the  other  party  to  make  the  contract,  the  presumption  is  that  he 
was  influenced  by  it ;  and,  in  order  to  take  away  his  right  to  relief 
on  the  ground  of  fraud,  it  must  be  shown  that  he  did  not  rely  on 
it."*' 

The  representation  need  not  have  been  the  sole  inducement  to 
enter  into  the  contract.  If  it  was  a  material  inducement — that  is,  if 
it  so  contributed  as  an  inducement  that  without  it  the  contract 
would  not  have  been  made — it  is  sufficient.** 

0  6  Ark  Wright  v.  Newbold,  17  Ch.  Div.  324 ;  Ming  v.  Woolfolli:,  116  TT.  S.  599, 
6  Sup.  Ct  489,  29  L.  Ed.  740;  Humphrey  v.  Merriam,  32  Minn.  197,  20  N.  W. 
138;  Crehore  v.  Crehore,  97  Mass.  330,  93  Am.  Dec.  98;  Runge  v.  Brown,  23 
Neb.  817,  37  N.  W.  660 ;  Braclsett  v.  Griswold,  112  N.  Y.  454,  20  N.  B.  376 ; 
Craig  V.  Hamilton,  118  Ind.  565,  21  N.  E.  315 ;  Priest  r.  White,  89  Mo.  609,  1 
S.  W.  361;  Buschman  v.  Codd,  52  Md.  202;  Farrar  v.  Churchill,  135  U.  S. 
616,  10  Sup.  Ct.  771,  34  L.  Ed.  246;  Hubbard  v.  Weare,  79  Iowa,  678,  44  N. 
W.  915;  Cobb  v.  Wright,  43  Minn.  83,  44  N.  W.  662;  Wiijier  v.  Smith,  22 
Or.  469,  30  Pac  416;  Pennybacker  v.  Laidley,  33  W.  Va.  624,  11  S.  E.  39; 
Darby  v.  KroelL,  92  Ala.  607,  8  South.  384 ;  Pratt  v.  Burhans,  84  Mich.  487, 
47  N.  W.  1064,  22  Am.  St.  Rep.  703 ;  Fowler  v.  McCann,  86  Wis.  427,  56  N. 
W.  1085;  Black  v.  Black,  110  N.  C.  398,  14  S.  E.  971;  Dady  v.  Condit,  163 
111.  511,  45  N.  E.  224 ;  Brady  v.  Evans,  78  Fed.  558,  24  C.  C.  A.  236 ;  Wagner 
T.  Insurance  Co.,  90  Fed.  395,  S3  C.  C.  A.  121.  See  "Contracts"  Dec.  Dig. 
(Key-yo.)  §  94;   Cent.  Dig.  §§  420-430. 

5  7  Horsfall  v.  Thomas,  1  Hurl.  &  C.  90,  99.  See  "Contracts,"  Dec.  Dig. 
{Key-'No.)  %  94;  Cent.  Dig.  §§  420-430;  "Sales,"  Dec.  Dig.  (Key-No.)  §  38; 
Cent.  Dig.  §§  65-85.  i 

68  Redgrave  v.  Hurd,  20  Ch.  DIv.  App.  21;  Hicks  v.  Stevens,  121  111.  186, 
11  N.  E.  241;  Garrison  v.  Electrical  Works,  59  N.  J.  Eq.  440,  45  Atl.  612; 
Dashiel  v.  Harshman,  113  Iowa,  283,  85  N.  W.  88;  Grim  v.  Byrd,  32  Grit. 
(Va.)  293.     See  "Sales,"  Dec.  Dig.  (Key-No.)  §  58;    Cent.  Dig.  §§  65-85. 

5  9  JAMES  V.  HODSDEN,  47  Vt  127,  Throckmorton  Cas.  Contracts,  195,  In 
which  it  is  said,  per  Redfield,  J.:  "It  is  enough  that  the  party  was  deceived 
and  cheated  and  the  defendant's  falsehood  and  fraudulent  practices  con- 
tributed to  that  end;"  Peek  v.  Derry,  37  Ch.  Div.  541,  L.  R.  14  App.  Cas. 
837;  SaCford  v.  Grout,  120  Mass.  20;  Burr  v.  Wlllson,  22  Minn.  206;  Lebby 
Clabk  Cont.(3d  Ed.) — 19 


290  REALITY   OF  CONSENT  (Ch.  7 

Injury  must  Result 

It  is  essential,  in  order  to  sustain  an  action  of  deceit,  or  to  give  a 
party  the  right  to  avoid  a  contract  on  the  ground  of  fraud,  that  he 
shall  have  been  prejudiced  or  injured  by  the  fraud.*®  Where,  for 
instance,  a  person  was  induced  to  exchange  his  property  for  shares 
of  stock  by  false  representations  of  the  other  party,  but  the  stock 
was  worth  what  he  gave  for  it,  so  that  he  suffered  no  injury,  it  was 
held  that  he  could  not  maintain  an  action  for  deceit.*^  And,  in  a 
case  in  which  the  seller  of  property  had  falsely  represented  that 
there  was  no  mortgage  thereon,  it  was  held  that  the  purchaser  could 
not  avoid  the  sale,  where  the  seller  had  the  mortgage  released  as 
soon  as  his  attention  was  called  to  it.®* 


SAME— EFFECT— REMEDIES 

140.  Fraud  renders  a  contract,  not  void,  but  merely  voidable  at  the 

option  of  the  party  injured.    Therefore, 

(a)  He  may  affirm  the  contract,  and  sue  for  damages  for  the  de- 

ceit, or,  if  sued  on  the  contract,  set  up  the  fraud  in  reduc- 
tion of  the  demand. 

(b)  He  may  rescind  the  contract,  and 

(1)  Sue  for  damages  for  the  deceit; 

(2)  Sue  to  recover  what  he  has  parted  with; 

(3)  Resist  an  action  at  law  on  the  contract ; 

(4)  Resist  a  suit  in  equity  for  specific  performance,  or 

(5)  Sue  in  equity  to  have  the  contract  avoided  judicially. 

141.  There  are  the  following  limitations  to  a  party's  right  to  rescind 

a  contract  for  fraud : 
(a)  He  cannot  rescind  after  affirming  it  by  accepting  its  benefits, 
or  by  suing  or  otherwise  acting  upon  it  after  discovery  of 
the  fraud. 

V.  Ahrens,  26  S.  C.  275,  2  S.  E.  387 ;  Saunders  v.  McClintock,  46  Mo.  App.  216 
Strong  V.  Strong,  102  N.  Y.  69,  5  N.  E.  799;  Ruff  v.  Jarrett,  94  IlL  475 
Moline-Milbum  Co.  v.  Franklin,  37  Minn.  137,  33  N.  W.  323.  See  "Contracts,' 
Dec.  Dig.  {Key-No.)  §  94;    Cent.  Dig.  §§  420-^30. 

6  0  Schubart  v.  Coke  Co.,  41  111.  App.  181;  Marriner  v.  Dennison,  78  Cal. 
202,  20  Pac.  386 ;  Lorenzen  v.  Investment  Co.,  44  Neb.  99,  62  N.  W.  231  ; 
Bomar  v.  Rosser,  131  Ala.  215,  31  South.  430.  But  see  Northrop  v.  Hill,  57 
N.  Y.  351.  15  Am.  Rep.  501.  See  ''Contracts."  Dec.  Dig.  (Key-No.)  S  94;  Cent. 
Dig.  §§  420-430. 

61  Alden  v.  Wright.  47  Minn.  225,  49  N.  W.  767,  and  cases  there  cited.  See 
"Fraud;'  Dec.  Dig.  (Key-No.)  §  25;    Cent.  Dig.  §  24. 

62  Johnson  v.  Seymour,  79  Mich.  156,  44  N.  W.  344.  And  see  Beard  v. 
Bliley,  3  Colo.  App.'479,  34  Pac.  271.  Cf.  Stevenson  v.  Marble  (C.  C.)  84  Fed. 
23.    See  "Sales,"  Dec.  Dig.  (Key-No.)  §  38;   Cent.  Dig.  §§  65-85. 


§§    140-141)  FEAUD  291 

(b)  Delay  in  rescinding  after  discovery  of  the  fraud,  or  after  it 

should  have  been  discovered,  may  amount  to  an  affirmance 
at  law,  and  may  bar  relief  in  equity  on  the  ground  of  laches. 

(c)  The  consideration  must  be  returned  as  a  condition  precedent 

to  the  right  to  rescind ;  and,  as  a  rule,  there  can  be  no  re- 
scission if  the  subject-matter  of  the  contract  has  been  so 
dealt  with  that  the  parties  cannot  be  placed  in  statu  quo. 
EXCEPTIONS — (1)  This  rule  does  not  apply  where  the 
consideration  has  been  destroyed,  or  taken  from  the 
injured  party's  control,  without  his  fault. 

(2)  Where  it  is  of  no  value  whatever. 

(3)  Provided  the  consideration  is  returned,  the  fraudulent 

party  need  not  be  placed  in  as  good  a  position  as  he 
before  occupied,  if,  by  reason  of  his  own  act,  it  is  im- 
possible to  do  so. 

(4)  If,  by  natural  causes,  or  reasonable  use,  the  value  of  the 

consideration  has  diminished,  it  may  be  returned  in 
its  depreciated  condition. 

(d)  The  right  to  rescind  may  be  defeated  by  a  third  person's 

having  acquired  an  interest  under  the  contract  for  value, 
and  without  notice  of  the  fraud. 

Fraud  does  not  render  the  contract  void,  but  renders  it  only  void- 
able at  the  option  of  the  party  defrauded.*'^  In  other  words,  it  is 
"valid  until  rescinded.  It  is  for  the  party  defrauded  to  elect  whether 
he  will  be  bound.^*  He  therefore  has  several  remedies  on  discover- 
ing the  fraud : 

First.  He  may  affirm  the  contract,  and  bring  an  action  for  de- 
ceit to  recover  such  damages  as  the  fraud  has  occasioned  him,  or 
set  up  such  damages  by  way  of  recoupment  or  counterclaim,  if  sued 
upon  the  contract  by  the  other  party."'    For  instance,  the  defraud- 

"s'ROWLEY  V.  BIGELOW,  12  Pick,  (Mass.)  307,  23  Am.  Dec.  607,  Throck- 
morton, Cas.  Contracts,  196;  Baird  v.  Mayor,  96  N.  Y.  567;  Smith  v.  Horn- 
back,  4  Litt  (Ky.)  232,  14  Am.  Dec.  122;  Foreman  v.  Bigelow,  4  Cliff.  541, 
Fed.  Cas.  No.  4,934 ;  Cobb  v.  Hatfield,  46  N.  Y.  533 ;  Wilson  v.  Hundley,  96 
Va,  96,  30  S.  E.  492,  70  Am.  St  Rep.  837.  See  "Contracts,"  Dec.  Dig.  {Key- 
2fo.)  §  98;    Cent.  Dig.  §  U7. 

«*  Rawlins  v.  Wickham,  3  De  Gex  &  J.  322;  Clough  v.  Railway  Co.,  L.  R. 
7  Exch.  26;  Tiffany,  Sales,  119.  See  "Contracts,"  Dec.  Dig.  {Key-'S'o.)  §  9S; 
Cent.  Dig.  §  W. 

86  Union  Cent  Life  Ins.  Co.  v.  Schidler,  130  Ind.  214.  29  N.  E.  1071,  15 
L..  R.  A.  89;  Peck  v.  Brewer,  48  111.  54;  Haven  v.  Neal,  43  Minn.  315,  45 
N.  W.  612;  Pryor  v.  Foster,  130  N.  Y.  171,  29  N.  E.  123;  Nauman  v.  Oberle, 
90  Mo.  606,  3  S.  W.  380;  Barr  v.  Kimball,  43  Neb.  766,  62  N.  W.  196.  But 
some  cases  hold  that  if,  while  the  contract  is  still  wholly  or  largely  executory, 


292  EBALITY   OF  CONSENT  (Ch.  7 

ed  buyer,  on  discovering  the  fraud,  may  keep  the  goods,  and  bring 
an  action  for  damages ;  *°  or,  if  he  has  not  paid  for  them,  he  may  set 
up  the  fraud  when  sued  by  the  seller  for  the  price.'^ 

Second.  He  may  rescind  the  contract,  and  (1)  sue,  in  an  action 
of  deceit,  for  any  damages  he  may  have  sustained  by  reason  of  the 
fraud ;  ®®  or  (2)  if  he  has  paid  money  under  the  contract,  he  may  re- 
cover it  back,""  and  if  he  has  delivered  goods  or  property  he  may 
maintain  an  action  of  replevin  or  trover ;'"  or  (3)  he  may  resist 
an  action  at  law  brought  against  him  on  the  contract;'^  or  (4) 
he  may  resist  a  suit  in  equity  by  the  other  party  for  specific  per- 
formance; '^^  or  (5)  he  may  himself  sue  in  equity  to  have  the  con- 
tract judicially  canceled  and  set  aside.'" 

the  defrauded  party  learns  of  the  fraud,  and  nevertheless  continues  to  carry 
out  the  contract,  exacting  performance,  and  receiving  benefits,  he  cannot 
maintain  an  action  for  the  deceit.  Kingman  &  Co.  v.  Stoddard,  85  Fed.  740, 
29  C.  C.  A.  413 ;  Simon  t.  Rubber  Shoe  Co.,  105  Fed.  573,  44  a  C.  A.  612,  52 
L.  R.  A.  745.    See  "Fraud,"  Dec.  Dig.  {Key-'So.)  §§  SI,  S2;   Cent.  Dig.  §§  27,  28. 

««  Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Cas.  323.  See  "Sales," 
Dec.  Dig.  {Key-No.)  §  404;    Cent.  Dig.  §§  1146-1155. 

8  7  Applegarth  v.  Robertson,  65  Md.  493,  4  Atl.  S96.  See  " Sales,"  Dec.  Dig. 
(Key-No.)  §  S48;    Cent.  Dig.  §§  973-986. 

68  Warden  v.  Fosdick,  13  Johns.  (N.  Y.)  325,  7  Am.  Dec.  383;  Bums  y. 
Dockray,  156  Mass.  135,  30  N.  E.  551;  Peck  v.  Brewer,  48  IlL  54.  See 
"Fraud.;'  Dec.  Dig.   (Key-No.)  |§  31,  32;    Cent.  Dig.  §§  27,  28. 

6  9  Clarke  v.  Dickson,  El.  Bl.  &  El.  148;  Coolidge  v.  Brigham,  1  Mete. 
(Mass.)  547;  Jordan  &  Davis  v.  Annex  Corp.,  109  Va.  625,  64  S.  E.  1050,  17 
Ann.  Cas.  267.  See  "Sales,"  Dec.  Dig.  (Key-No.)  f  404;  Cent.  Dig.  §S  II46- 
1155. 

70  Thurston  y.  Blanchard,  22  Pick,  (Mass.)  18,  33  Am.  Dee.  700;  Ferguson 
V.  Carrington,  9  Bam.  &  C.  59 ;  Lee  v.  Bumham,  82  Wis.  209,  52  N.  W.  255 ; 
Moody  V.  Blake,  117  Mass.  23,  19  Am.  Rep.  394 ;  Cary  v.  Hotailing,  1  Hill  (N. 
Y.)  311,  37  Am.  Dea  323;  Benesch  v.  Weil,  69  Md.  276,  14  Atl.  666;  Barker 
V.  Dinsmore,  72  Pa.  427,  13  Am.  Rep.  697.  See  "Sales,"  Dec.  Dig.  (Key-No.) 
§§  316-318;  Cent.  Dig.  §§  890-898. 

TiClough  V.  Railway  Co.,  L.  R.  7  Exch,  26,  36;  Olston  t.  Oregon  Water 
Power  &  Ry.  Co.,  52  Or.  343,  96  Pac.  1095,  97  Pac  538,  20  L.  R.  A.  (N.  S.)  915. 
See  "Sales,"  Dec.  Dig.  (Key-No.)  §  347;   Cent.  Dig.  §§  962-972. 

7  2  RatlifC  V.  Vandikes,  89  Va.  307,  15  S.  E.  864;  Friend  v.  Lamb,  152  Pa. 
529,  25  Ati.  577,  34  Am.  St  Rep.  672;  McShane  v.  Hazlehurst,  50  Md.  107; 
Chute  V.  Quincy,  156  Mass.  189,  30  N.  B.  530;  Brown  v.  Pitcaim,  148  Pa. 
387,  24  Atl.  52,  33  Am.  St  Rep.  834.  See  "Specific  Performance,"  Dec.  Dig. 
(Key-No.)  §  53;    Cent.  Dig.  §§  160-171^2- 

7  3  Castle  V.  Kemp,  124  111.  307,  16  N.  E.  255;  Downing  y.  Wherrin.  19  N. 
H.  9,  49  Am.  Dec.  139;  Burrows  v.  Wene  (N.  J.)  26  Atl.  890;  Williams  v. 
Kerr,  152  Pa.  560,  25  Atl.  618;  Jackson  v.  Hodges,  24  Md.  468;  Tretheway 
V.  Hulett  52  Minn.  448,  54  N.  W.  486.  See  "Cancellation  of  Instruments," 
Dec.  Dig.  (Key-No.)  {  4;    Cent.  Dig.  |  1. 


§§  140-141)  FRAUD  293 

Limitations  to  Right  to  Rescind 

As  a  rule,  the  defrauded  party  must  elect  to  rescind  within  a  rea- 
sonable time  after  discovering  the  fraud/*  of,  what  amounts  to  the 
same  thing,  after  he  could  have  discovered  it  by  the  use  of  due  dili- 
gence.'"^ It  has  been  said  that  mere  lapse  of  time,  in  the  absence  of 
statutory  regulation,  will  not  bar  his  right  to  rescind,  though  it 
would  be  evidence  tending  to  show  an  intention  to  affirm/'  A  de- 
lay in  rescinding  which  is  unreasonable  in  view  of  the  particular 
circumstances,  however,  will  generally  be  regarded,  even  at  law,  as 
an  election  to  aflfirm,^^  and  will  bar  relief  in  equity  on  the  ground 
of  laches/* 

Any  acts  which  unequivocally  treat  the  contract  as  subsisting  will 
constitute  an  affirmance.  If,  after  discovering  the  fraud,  the  party 
injured  acts  on  the  contract  by  accepting  some  benefit  under  it,  or 
otherwise,  he  affirms  it,  and  cannot  afterwards  rescind,  for  after  an 
affirmance  the  election  is  determined/*    Bringing  an  action  on  the 

7  4  Johnson  v.  McLane,  7  Blackf.  (Ind.)  501,  43  Am.  Dec.  102;  Schiffer  v. 
Dietz,  83  N.  T.  300 ;  Strong  v.  Strong,  102  N.  Y.  69,  5  N.  E.  799 ;  Bailey  v. 
Fox,  78  Cal.  389,  20  Pac.  868;  Young  v.  Amtze,  86  Ala.  116,  5  South.  253; 
Pence  v.  Langdon,  99  U.  S.  578,  25  L.  Ed.  420;  Taylor  v.  Short,  107  Mo.  384, 
17  S.  W.  970;  Rugan  v.  Sabin,  10  U.  S.  App.  519,  3  C.  C.  A.  578,  53  Fed.  415; 
Wilbur  V.  Flood,  16  Mich.  40,  93  Am.  Dec.  203;  Conlan  v.  Roemer,  52  N.  J. 
Law,  53,  18  Atl.  858 ;  Foley  v.  Crow,  37  Md.  62 ;  Fleming  v.  Hanley,  21  R. 
I.  141,  42  Atl.  520.  Delay  alone,  without  discovery  of  the  fraud,  will  not 
bar  the  right  to  rescind.  Smith's  Adm'r  t.  Smith,  30  Vt.  139;  Brown  v. 
Norman,  65  Miss.  369,  4  South.  293,  7  Am.  St.  Rep.  663 ;  Bowman  v.  Patrick 
(C.  C.)  36  Fed.  138;  Shevlin  v.  Shevlin,  96  Minn,  398,  105  N.  W.  257.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  270;   Cent.  Dig.  §§  1189,  1200. 

7  6  Redgrave  v.  Hurd,  20  Ch,  Div.  1;  Georgia  Pac.  R.  Co.  v.  Brooks,  66 
Miss.  583,  6  South.  467;  Bostwick  v.  Insurance  Co.,  116  Wis.  392,  89  N.  W. 
538,  92  N.  W.  246,  67  L.  R.  A.  705.  See  "Contracts,"  Dec  Dig.  {Key-No.)  S 
270;    Cent.  Dig.  §§  1189,  1200. 

76  Anson,  Cont  (8th  Ed.)  177;  Clough  t.  Railroad  Co.,  L.  R,  7  Exch.  35; 
Wicks  V.  Smith,  21  Kan.  412,  30  Am.  Rep,  433.  See  "Contracts,'^  Dec.  Dig. 
(Key-No.)  §  270;    Cent.  Dig.  §§  1189,  1200. 

7  7  Masson  v,  Bovet,  1  Denio  (N.  Y.)  69,  43  Am.  Dec  651;  Perry  v.  Pear- 
son. 135  111.  ^IS  25  X.  E.  636:  Carrol!  r.  People.  13  111.  App.  206:  note  7J. 
Bupra.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  270;    Cent.  Dig.  §§  1189,  1200. 

78  Cox  V.  Montgomery,  36  111,  396;  Perry  v.  Pearson,  135  111.  218,  25  N.  E. 
636;  Whittaker  v.  Improvement  Co.,  34  W.  Va.  217,  12  S.  E.  507;  Barnard 
V.  Iron  Co.,  85  Tenn.  139,  2  S.  W.  21 ;  Burkle  v.  Levy,  70  Cal.  250,  11  Pac.  643; 
Wilkinson  v.  Sherman,  45  N.  J.  Eq.  413,  18  Atl.  228;  Coles  v.  Vanneman,  51 
N.  J.  Eq.  323,  18  Atl.  468,  30  AO.  422.  See  "Contracts,"  Dec.  Dig.  (Key-N»  )  S 
270;  Cent.  Dig.  §§  1189,  1270. 

7  9  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798;  Dennis  v.  Jones,  44  N.  J. 
Eq.  513,  14  Atl.  913,  6  Am.  St  Rep.  899;  Pence  t.  Langdon,  99  U.  S,  578,  25 
L.  Ed.  420;  Lockwood  v.  Fitts,  90  Ala.  150,  7  South.  467;  Crooks  t.  Nippolt, 
44  Minn.  239,  46  N.  W.  349;  Eberstein  v.  Willets  134  111..  101,  24  N.  E.  967; 
Troup  v.  Appleman,  52  Md.  456;  Wyeth  v.  Walzl,  43  Md.  429;  Cobb  v.  Hat- 


294  REALITY   OF   CONSENT  (Cll.  7 

contract,  or  otherwise  seeking  to  enforce  it,  after  knowledge  of  the 
fraud,  is  an  affirmance.^"  It  is  otherwise  if  an  action  is  brought,  or 
the  contract  otherwise  acted  upon,  in  ignorance  of  the  fraud."  As 
already  stated,  an  affirmance  of  the  contract  is  no  bar  to  an  action 
to  recover  damages  for  the  deceit.'* 
Return  of  Consideration — Placing  in  Statu  Quo 

The  contract  must  be  rescinded  in  toto ;  it  cannot  be  rescinded 
in  part  and  affirmed  in  part.®^  As  a  rule,  therefore,  it  is  a  condition 
precedent  to  the  right  to  rescind  a  contract  on  the  ground  of  fraud 
that  the  party  seeking  to  rescind  shall  return,  or  offer  to  return, 
tvhat  he  has  received  under  the  contract;®*  and  generally,  if  the 
subject-matter  has  been  so  dealt  with,  even  before  discovery  of  the 
fraud,  that  the  parties  cannot  be  reinstated  in  their  former  position, 

field,  46  N.  Y.  533 ;  Bell  v.  Keepers,  39  Kan.  105,  17  Pac.  785 ;  Bach  v.  Tuch, 
126  N.  Y.  53,  26  N.  E.  1019;  Kennedy  v.  Bender  (Tex.  Civ.  App.)  140  S.  W. 
491.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  V/2-^-i6. 

8  0  Bach  V.  Tuch,  supra;  Conrow  v.  Little,  115  N.  Y.  387,  22  N.  E.  346,  5 
L.  R.  A.  693;  Goodall  v.  Stewart,  65  Miss.  157,  3  South.  2.57;  Mansfield  v. 
Wilson  (Ark.)  13  S.  W.  598;  Bedier  v.  Reaume,  95  Mich.  518,  55  N.  W.  3G6; 
Wheeler  v.  Dunn,  13  Colo,  428,  22  Pac.  827 ;  Stevens  v.  Pierce,  151  Mass.  207, 
23  N.  E/1006.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  U2- 

81  Lee  V.  Burnham,  82  Wis.  209,  52  N.  W.  2-55;  Equitable  Go-op.  Foundry 
CJo.  V.  Hersee,  103  N.  Y.  25,  9  N.  E.  487 ;  Hoyt  Mfg.  Co.  v.  Turner,  84  Ala.  523, 
4  South.  658;  Baker  v.  Maxwell,  99  Ala.  558,  14  South.  468.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  U2-US. 

8  2  Ante,  p.  291;  Gilchrist  v.  Manning,  54  Mich.  210,  19  N.  W.  9.59;  Mattock 
V.  Reppy,  47  Ark.  148,  14  S.  W.  546;  Hinchman  v.  Weeks,  85  Mich.  535,  48 
N.  W.  790 ;  Childs  v.  Merrill,  63  Vt.  463,  22  Atl.  626,  14  L.  R.  A,  264 ;  Union 
Cent.  Life  Ins.  Co.  v.  Schidler,  130  Ind.  214,  29  N.  E.  1071,  15  L.  R.  A.  89; 
Wabash  Valley  Protective  Union  v.  James,  8  Ind.  App.  449,  35  N.  E.  919; 
Teachout  v.  Van  Hoesen,  76  Iowa,  113,  40  N.  W.  96,  1  L.  R.  A.  6G4,  l4  Am. 
St.  Rep.  206;  Kennedy  v.  Bender  (Tex.  Civ.  App.)  140  S.  W.  491.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  97;  Cent.  Dig.  §§  U2-U6. 

83  Brill  V.  Rack  (Ky.)  23  S.  W.  511;  Merrill  v.  Wilson,  66  Mich.  2.32,  33  N, 
W.  716;  Barrie  v.  Earle,  143  Mass.  1,  8  N.  E.  639,  58  Am.  Rep.  126;  Bell  v. 
Keepers,  39  Kan.  105,  17  Pac.  785 ;  ante,  p.  212,  And  see  the  cases  cited  in  the 
following  notes.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  266;  Cent.  Dig.  § 
11S6. 

8  4  Brown  V.  Norman,  65  Miss.  369,  4  South.  293,  7  Am.  St.  Rep.  663;  Esta- 
brook  V.  Swett,  116  Mass.  303;  Cobb  v.  Hatfield,  46  N,  Y,  533;  Thompson  v. 
Peck,  115  Ind.  512,  18  N.  E.  16,  1  L.  R.  A.  201 ;  Babcock  v.  Case,  61  Pa.  427, 
100  Am.  Dec.  654;  Young  v,  Arntze,  86  Ala.  116,  5  South.  253;  Doughten  v. 
Association,  41  N.  J,  Eq.  556,  7  Atl.  479;  CooMngham  v.  Dusa,  41  Kan.  229, 
21  Pac.  95;  Carlton  v.  Hulett,  49  Minn.  308,  51  N.  W,  1053;  Balue  v.  Taylor, 
136  Ind.  368,  36  N.  E.  269;  Freeman  v.  Kieffer,  101  Gal,  254,  35  Pac.  767; 
Moore  v.  Association,  165  Mass.  517,  43  N.  E.  298;  Friend  Bros.  Clothing  Co. 
V.  Hulbert,  98  Wis,  183,  73  N,  W.  784;  Breyfogle  v,  Walsh,  80  Fed.  172,  25 
a  C.  A.  357.     See  "Contracts,"  Dec  Dig.  (Key-No.)  §  266;  Cent.  Dig.  %  11S6. 


§§  140-141)  FRAUD  295 

the  court  will  not  allow  a  rescission,  but  will  leave  the  matter  to  be 
adjusted  by  an  action  for  damages  by  the  party  injured,  or  defense 
or  counterclaim  in  an  action  by  the  other  party.*'' 

The  defrauded  party  need  not  return  what  he  has  received,  how- 
ever, if  it  has  been  destroyed,  or  taken  from  his  control,  without 
fault  on  his  part,*®  or  if  it  is  absolutely  worthless.*^  Nor  need  he 
place  the  other  party  in  the  position  which  he  before  occupied,  if,  by 
reason  of  the  latter's  act,  it  is  impossible  to  do  so.  All  that  can  be 
required  is  that  he  return  what  he  has  himself  received.*®  Mere 
depreciation  in  value  of  the  thing  received  before  discovery  of  the 
fraud  will  not  defeat  rescission ;  *®  and  if  in  the  meantime  he  has  in- 
curred expenses  for  repairs,  he  may,  on  rescission  and  return,  re- 
cover the  cost.^" 

Same — As  Against  Third  Persons 

It  follows  from  the  principle  that  the  contract  is  voidable,  and 
not  void,  that,  when  innocent  third  persons  have  for  value  acquired^ 
rights  under  the  contract,  their  rights  are  indefeasible.  The  rule  is 
also  said  to  be  an  application  of  the  principle  of  convenience,  that, 

8  6  Curtiss  V.  Howell,  39  N.  Y.  211;  Neal  v.  Reynolds,  38  Kan,  4.32,  16  Pae. 
785;  Rigdon  v.  Walcott,  141  111.  649,  31  N.  E.  158;  Stanton  v.  Hughes,  97 
N.  C.  318,  1  S.  E.  852 ;  Handforth  v.  Jackson,  150  Mass.  149,  22  N.  E.  634. 
See  ''Contracts,''  Dec.  Dig.  {Key-No.)  §  266;  Cent.  Dig.  §  11S6. 

8  6Neblett  v.  Macfarland,  92  U.  S.  101,  23  L.  Ed.  471;  Flynn  v.  Allen,  57 
Pa.  482;  Hammond  v.  Pennock,  61  N.  Y.  145;  Henninger  v.  Heald,  51  N.  J. 
Eq.  74,  26  Atl.  449;  Groff  v.  Hansel,  33  Md.  161.  See  ''Contracts,"  Deo.  Dig. 
(Key-No.)  §  266;  Cent.  Dig.  §  1186. 

8  7  Fltz  V.  Bynum,  55  Cal.  459;  Wicks  v.  Smith,  21  Kan.  412,  30  Am.  Rep. 
433;  Babcock  v.  Case,  61  Pa.  427,  100  Am.  Dec.  654.  If  the  things  received 
are  capable  of  serving  any  purpose  of  advantage  by  their  possession  or  con- 
trol, or  if  their  loss  would  be  a  disadvantage  in  any  way,  they  must  be  re- 
turned. "This  rule  is  held  with  great  strictness  in  actions  at  law,  as  in  the 
case  of  the  casks  that  contained  worthless  lime  (Conner  v.  Henderson,  15  Mass. 
319,  8  Am.  Dec.  103),  and  the  sacK  that  covered  the  rejected  bale  of  cotton 
(Morse  v.  Brackett,  98  Mass.  205;  Id.,  104  Mass.  494)."  Bassett  v.  Brown, 
105  Mass.  558.  And  see  Evans  v.  Gale,  17  N.  H.  573,  43  Am.  Dec.  614.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  266;  Cent.  Dig.  §  11S6. 

88  Masson  v.  Bovet,  1  Denio  (N.  Y.)  69,  43  Am.  Dec.  651 ;  Hammond  v. 
Pennock,  61  N.  Y.  145 ;  Guckenheimer  v.  Angevine,  81  N.  Y.  394 ;  Gates  v. 
Raymond,  106  Wis.  657,  82  N.  W.  530.  And  see  John  V,  Farwell  Co.  v.  Hilton 
(C.  C.)  84  Fed.  293,  39  L.  R.  A.  579.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
i  266;  Cent.  Dig.  §  11S6. 

8  9  Veazie  v.  Williams,  8  How.  134,  158,  12  L.  Ed.  1018;  Neblett  r.  Macfar- 
land, 92  U.  S.  101,  104,  23  L.  Ed.  471 ;  Baker  v.  Lever,  67  N.  Y.  304,  23  Am. 
Rep.  117;  Gatling  v.  Newell,  9  Ind.  574;  Goodrich  v.  Lathrop,  94  Cal.  56,  29 
Pac.  329,  28  Am.  St  Rep.  91.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  266; 
Cent.  Dig.  §  11S6. 

80  Farris  v.  Ware,  60  Me.  482.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  266; 
Cent.  Dig.  §  1186. 


296  REALITY   OP   CONSENT  (Ch.  7 

when  one  of  two  innocent  persons  must  suffer  from  the  fraud  of  a 
third,  the  loss  should  fall  on  the  one  who  enabled  the  third  party  to 
commit  the  fraud.°^  Hence,  a  sale  of  land  or  goods  cannot  be  re- 
scinded so  as  to  revest  the  property  in  the  vendor  if  the  vendee  has 
in  the  meantime  sold  them  to  a  bona  fide  purchaser.®^  The  seller's 
remedy  is  by  an  action  for  damages.^'  The  purchase  must  be  for 
value,  and  hence  the  protection  does  not  extend  to  attaching  credi- 
tors,'* to  an  assignee  in  bankruptcy,'^  or  to  a  person  taking  the 
property  in  payment  of  an  existing  indebtedness.'® 

A  sale,  however,  is  to  be  distinguished  from  mere  delivery  of  pos- 
session induced  by  fraud ;  for  in  the  latter  case  the  person  obtaining 
possession  acquires  no  property  in  the  goods,  and  can  pass  none  to  a 
third  person,  however  innocent.  Thus,  where  a  person  obtains 
goods  by  fraudulently  impersonating  a  third  person,'^  or  by  pre- 
tending to  be  the  agent  of  a  third  person,'*  to  whom  the  owner  sup- 

•1  Pollock,  Cent.  (3d  Ed.)  556;  Tiffany,  Sales,  122. 

»2  ROWLEY  V.  BIGELOW,  12  Pick.  (Mass.)  307,  23  Am.  Dec.  607,  Throck- 
morton Cas.  Contracts,  196.  See  "Vendor  and  Purchaser,"  Dec.  Dig.  (Key- 
No.)  §  2S9;  Cent.  Dig.  §§  583-600. 

»3  Babcock  V.  Lawson,  4  Q.  B.  Div.  394 ;  ROWLEY  v.  BIGELOW,  12  Pick. 
(Mass.)  307,  23  Am.  I>ec.  607.  Throckmorton  Cas.  Contracts,  196;  Hoffman 
V.  Noble,  6  Mete.  (Mass.)  68,  39  Am.  Dec.  711;  Neff  v.  Landis,  110  Pa.  204,  1 
Atl.  177 ;  Le  Grand  v.  Bank,  81  Ala.  123,  1  South.  460,  60  Am.  Rep.  140 ;  Moore 
T.  Moore,  112  Ind.  149,  13  N.  E.  673,  2  Am.  St.  Rep.  170;  Jones  v.  Christian, 
86  Va.  1017,  11  S.  E.  984 ;  Armstrong  v.  Lewis,  38  111.  App.  164 ;  First  Nat 
Bank  v.  Carriage  Co.,  70  Miss.  587,  12  South.  598;  Scheuer  v.  Goetter,  102 
Ala.  313,  14  South.  774;  Hall  v.  Hinks,  21  Md.  406;  Singer  Mfg.  Co.  v.  Sam- 
mons,  49  Wis.  316,  5  N,  W.  788;  Cochran  v.  Stewart,  21  Minn.  435.  See 
"Vendor  and  Purchaser,"  Dec.  Dig.   (Key-No.)  §  239;  Cent.  Dig.  §§  583-600. 

9*  Buffington  v.  Gerrish,  15  Mass.  158,  8  Am.  Dec.  97;  Thompson  v.  Rose, 
16  Conn.  71,  41  Am.  Dec.  121;  Jordan  v.  Parker,  56  Me.  557;  Oswego  Starch 
Factory  v.  Lendrum,  57  Iowa,  573,  10  N.  W.  900,  42  Am.  Rep.  53 ;  Henderson 
V.  Gibbs,  39  Kan.  679,  684,  18  Pac.  926.  See  "Sales,"  Dec.  Dig.  (Key-No.)  S 
222;  Cent.  Dig.  §§  609-611;  "Vendor  and  Purchaser,"  Dec.  Dig.  (Key-No.)  § 
S16;  Cent.  Dig.  §  J/Jfl;  "Execution,"  Cent.  Dig.  §§  53,  106-109,  113,  115. 

•  B  Donaldson  v.  Farwell,  93  U.  S.  631,  23  L.  Ed.  993 ;  Bussing  v.  Rice,  2 
Cush.  (Mass.)  48;  Singer  v.  Schilling,  74  Wis.  369,  43  N.  W.  101;  Benesch 
T.  Weil,  69  Md.  274,  14  Atl.  666.  -See  "Sales,"  Dec.  Dig.  (Key-No.)  §  250;  Cent. 
Dig.  §  650. 

88  Barnard  v.  Campbell.  58  N.  Y.  73,  17  Am.  Rep.  208;  Stevens  v.  Brennan, 
79  N.  Y.  2.58;  Sleeper  v.  Davis,  64  N.  H.  59,  6  Atl.  201,  10  Am.  St.  Rep.  377; 
Poor  V.  Woodburn,  25  Vt  235 ;  McGraw  v.  Solomon,  S3  Mich.  442,  47  N.  W. 
S45.  Contra,  Shufeldt  v.  Pease,  16  Wis.  659;  Butters  v.  Haughwout,  42  111. 
18,  89  Am.  Dec.  401.    See  "Sales,"  Dec.  Dig.  (Key-No.)  §  2S0;  Cent.  Dig.  §  630. 

»T  GUNDY  V.  LINDSAY,  3  App.  Cas.  459,  47  L.  J.  Q.  B.  481,  38  L.  T.  Rep. 
N.  S.  573,  26  Wkly.  Rep.  406,  Throckmorton  Cas.  Contracts,  169;  Loeffel  v. 
Pohlman,  47  Mo.  App.  574.  Cf.  Edmunds  v.  Transportation  Co.,  135  Mass.  283. 
See  "Sales,"  Dec.  Dig.  (Key-No.)  §  23-i;  Cent.  Dig.  §§  645-6S0. 

»8  Cases  cited,  ante,  p.  250,  "ote  21. 


§§  142-144)  DUKESS  297 

poses  he  is  selling,  the  person  thus  obtaining  the  goods  acquires  no 
title,  and  a  bona  fide  purchaser  from  him  stands  in  no  better  posi- 
tion. In  such  case  there  is  no  contract  at  all,  as  the  seller  never  con- 
sented to  sell  to  the  person  to  whom  he  delivered  the  goods. 

As  a  rule,  if  a  negotiable  instrument  is  procured  by  fraud,  the 
party  intending  to  sign  it  as  such,  so  that  there  is  no  mistake  as  to 
the  character  of  the  instrument,  it  cannot  be  avoided  on  the  ground 
of  the  fraud  after  it  has  passed  into  the  hands  of  a  bona  fide  pur- 
chaser for  value;  **  but,  as  we  have  seen,  it  is  otherwise  where,  by 
fraud  or  circumvention,  a  person  is  induced  to  sign  a  negotiable  in- 
strument, when  he  does  not  intend  to  sign  it,  but  thinks  he  is  sign- 
ing something  else,  provided,  of  course,  he  is  not  guilty  of  such 
negligence  as  will  estop  him  from  setting  up  his  mistake.^ 


DURESS 

142.  Duress  is  actual  or  threatened  violence  or  imprisonment,  by 

reason  of  which  a  person  is  forced  to  enter  into  a  contract. 
To  affect  the  contract,  however, 

(a)  It  must  have  been  against  or  of  the  contracting  party,  or  his 

or  her  wife,  or  husband,  parent,  child,  or  other  near  rela- 
tive. 

(b)  It  must  have  been  inflicted  or  threatened  by  the  other  party 

to  the  contract,  or  by  one  acting  with  his  knowledge  or  on 
his  behalf. 

(c)  It  must  have  induced  the  party  to  enter  into  the  contract. 

143.  OF  GOODS.     By  the  weight  of  modern  authority,  the  unlaw- 

ful detention  of  another's  goods  under  oppressive  circum- 
stances, or  their  threatened  destruction,  may  constitute 
duress. 

144.  EFFECT.    A  contract  entered  into  by  a  person  under  duress 

is  voidable  at  his  option. 

The  ground  upon  which  a  contract  entered  into  under  duress  can 
be  avoided  is  because  there  is  no  real  consent.  The  apparent  con- 
sent is  unreal  because  of  the  imprisonment  or  force,  or  of  the  fear 

»»  Clark  V.  Thayer,  105  Mass.  216,  7  Am.  Rep.  Rll  ;  Smith  t.  Livingston, 
111  Mass.  342;  Southwick  v.  Bank,  81  N.  Y.  420;  Grldley  v.  Bane.  57  111.  529; 
Ormsbee  v.  Howe,  54  Vt.  182,  41  Am.  Rep.  841.  See  "Bills  and  Notei,"  Dee, 
Dig.   (Key-No.)  §  575;  Cent.  Dig.  §§  966-910. 

»  See  ante,  p.  247. 


298  REALITY   OP   CONSENT  (Ch.  7 

caused  by  the  threats.  "Actual  violence,"  it  has  been  said,  "is  not 
necessary  to  constitute  duress,  ♦  ♦  ♦  because  consent  is  the 
very  essence  of  a  contract ;  and,  if  there  be  compulsion,  there  is  no 
actual  consent;  and  moral  compulsion,  such  as  that  produced  by 
threats  to  take  life,  or  to  inflict  great  bodily  harm,  as  well  as  that 
produced  by  imprisonment,  is  everywhere  regarded  as  sufficient, 
in  law,  to  destroy  free  agency,  without  which  there  can  be  no  con- 
tract, because  in  that  state  of  the  case  there  is  no  consent.  'Duress,' 
in  its  more  extended  sense,  means  that  degree  of  constraint  or  dan- 
ger, either  actually  inflicted  or  threatened  and  impending,  which  is 
sufficient,  in  severity  or  in  apprehension,  to  overcome  the  mind  and 
will  of  a  person  of  ordinary  firmness."  * 

The  statement  of  what  constitutes  duress,  made  in  this  and  many 
other  cases,'  requires  that  the  violence  or  threats  shall  have  been 
sufficient  to  overcome  a  mind  of  "ordinary  firmness,"  or  the  mind  of 
a  person  of  "ordinary  courage."  By  the  great  weight  of  modern  au- 
thority, however,  both  in  this  country  and  in  England,  this  test  has 
been  rejected.  The  ruk  nowxejOiJ^rally  prejyailingJsjhajLyJ^^ 
threats  employed  for  the  purpose  of  overcoming  the  mind,  and  ac- 
tually having  that  efifect,  constitute  duress,  although  the  violence  or 
threats  employed  would  not  be  sufficient  to  overcome  the  mind  of 
a  person  of  ordinary  firmness.* 

2  Pierce  v.  Brown,  7  Wall.  205,  19  L.  Ed.  134.  See,  also,  Baker  r.  Morton, 
12  Wall.  150,  20  L.  Ed.  202;  Foshay  v.  Ferguson,  5  Hill  (N.  Y.)  154;  Eadie 
V.  summon,  26  N.  Y.  12,  82  Am.  Dea  395;  French  v.  Shoemaker,  14  Wall. 
314,  20  L.  Ed.  852;  U.  S.  v.  Huckabee,  16  Wall.  432,  21  L.  Ed.  4.57;  Miller  v. 
Miller,  68  Pa.  486;  Guilleaume  v.  Rowe,  04  N.  Y.  268,  46' Am.  Rep.  141;  Har- 
mon V.  Harmon,  61  Me.  227,  14  Am.  Rep.  556;  Fisher  v.  Shattuck,  17  Pick. 
(Mass.)  252;  Gotwalt  v.  Neal,  25  Md.  434;  Bane  v.  Detrick,  52  111.  19;  Alex- 
ander V.  Pierce,  10  N.  H.  494 ;  McClair  v.  Wilson,  18  Colo.  82,  31  Pac.  502 ; 
Horton  v.  Bloedorn,  37  Neb.  6G6,  56  N.  W.  321 ;  Batavian  Bank  v.  North,  114 
Wis.  637,  90  N.  W.  1016.  A  threat  by  a  husband  to  separate  from  his  wife 
and  not  support  her  has  been  held  such  duress  as  to  avoid  a  deed  by  her  to 
him  induced  thereby.  Tapley  v.  Tapley,  10  Minn.  448  (Gil.  360),  88  Am.  Dec. 
76.  An  angry  command  by  husband  to  wife,  unaccompanied  by  threats  of 
personal  violence,  held  not  duress.  Gabbey  v.  Forgeus,  38  Kan.  62,  15  Pac. 
866.  Merely  to  speak  roughly  to  a  woman,  without  threats  of  personal  vio- 
lence, is  not  duress.  Dausch  v.  Crajie,  109  Mo.  323,  19  S.  W.  61.  Mere  vexa- 
tion and  annoyance  Is  not  duress.  Brower  v.  Callender,  105  111.  88.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)   §  95;  Cent.  Dig.  §§  43i-//^rt. 

»  United  States  v.  Huckabee,  16  Wall.  414,  21  L,  Ed.  457 ;  Hines  v.  Board, 
93  Ind.  266;  Morse  v.  Woodworth,  155  Mass.  233,  27  N.  E.  1010,  20  N.  E. 
525 ;  Flanigan  v.  City  of  Minneapolis,  36  Minn.  406,  31  N.  W.  359 ;  Horton  v. 
Bloedorn,  37  Neb.  666,  56  N.  W.  321;  Kennedy  v.  Roberts,  105  Iowa,  521,  75 
N.  W.  363.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  95;  Cent.  Dig.  §§  431-^1/0. 

*GALUSHA  T.  SHER^IAN,  105  Wis.  263,  81  N.  W.  495,  47  L.  R.  A.  417, 


§§  142-144)  DUKESS  :29a 

It  is  almost  needless  to  add  that  the  contract  must  have  been 
made  because  of  the  imprisonment,  or  of  fear  of  the  threatened  in- 
jury or  imprisonment;  otherwise,  there  is  no  duress." 
Duress  per  Minos 

Duress  per  minas,  as  defined  at  common  law,  is  where  a  person 
is  forced  to  enter  into  a  contract  (a)  from  fear  of  loss  of  life; 
(b)  from  fear  of  loss  of  limb;  (c)  from  fear  of  mayhem;  (d)  from 
fear  of  imprisonment, — and  there  is  no  doubt  but  that  threats  of 
such  injuries  will  constitute  duress.'  The  older  English  authori- 
ties restrict  the  operation  of  the  rule  within  the  limits  mentioned. 
They  deny  that  contracts  procured  by  menace  of  a  mere  battery 
to  the  person  can  be  avoided  on  that  ground ;  and  the  reason 
assigned  for  this  rule  is  that  such  threats  are  not  of  a  nature  to 
overcome  the  mind  and  will  of  a  firm  and  prudent  man.''  There 
are  cases  to  the  same  effect  in  this  country,  and  some  of  the  text 
writers  have  adopted  the  old  rule.' 

Throckmorton  Cas.  Contracts,  200;  Cribbs  v.  Sowle,  87  Mich.  340,  49  N,  W. 
587,  24  Am.  St  Rep.  166;  Baldwin  v.  Hutchinson,  8  Ind.  App.  454,  35  N.  E. 
711 ;  Parmentier  v.  Pater,  13  Or.  121,  9  Pac.  59 ;  International  Harvester  Co. 
V.  Voboril,  187  Fed.  973,  110  C.  C.  A.  311 ;  McCarthy  v.  Tanska,  84  Conn.  877, 
80  Atl.  84;  Williamson-Halsell,  Frazier  Co.  v.  Ackerman,  77  Kan.  502,  94 
Pac.  S07,  20  L.  R.  A.  (N.  S.)  484 ;  Brown  v.  Worthington,  162  Mo.  App.  508, 
142  S.  W,  1082 ;  Nebraska  Mut.  Bond  Ass'n  v.  Klee,  70  Neb.  383,  97  N.  W.  476. 
See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  95;  Cent.  Dig.  §§  J,S1-U0. 

5  Feller  v.  Green,  26  Mich.  70;  Flanigan  v.  City  of  Minneapolis,  36  Minn. 
406,  31  N.  W.  359;  Schwartz  v.  Schwartz,  29  IlL  App,  516;  Inhabitants  of 
WhiteQeld  v,  Longfellow,  13  Me.  146;  Alexander  v.  Pierce,  10  N.  H.  494; 
Bosley  v.  Shanner,  26  Ark.  280;  Stone  v.  Weiller,  57  Hun,  588,  10  N.  T. 
Supp.  828;  Post  v.  Bank,  138  111.  559,  28  N.  E.  97a  See  "Contracts;'  Dec 
Dig.   (Key-No.)  §  95;   Cent.  Dig.  §§  4S1-U0. 

«  3  Bac.  Abr.  "Duress,"  252 ;  Baker  v.  Morton,  12  Wall.  150,  20  L.  Ed.  262 ; 
and  cases  hereafter  cited.  Threat  of  personal  violence.  Pierce  v.  Brown,  7 
Wall.  205,  19  L.  Ed.  134;  Baker  v.  Morton,  supra;  Magoon  v.  Reber,  76  Wis. 
392,  45  N.  W.  112;  Anderson  v.  Anderson,  74  Hun,  56,  26  N.  Y.  Supp.  492, 
Threat  of  criminal  prosecution  and  Imprisonment.  Foshay  v,  Ferguson,  5 
Hill  (N.  Y.)  154;  2  Co.  Inst.  483;  Co.  Litt.  253b;  Eadie  v.  Slimmon,  26  N. 
Y.  9,  82  Am.  Dec.  395;  Inhabitants  of  Whitefield  v.  Longfellow,  13  Me.  146; 
Bane  v.  Detrick,  52  111.  19;  James  y.  Roberts,  18  Ohio,  548;  Baldwin  v. 
Hutchi.<;on,  8  Ind.  App.  454,  35  N.  E.  711 ;  Maricle  v.  Brooks,  51  Hun,  638,  5 
N.  Y.  Supp.  210 ;  Morrison  v.  Faulkner,  80  Tex.  128,  15  S.  W,  797 ;  Landa  v. 
Obert,  78  Tex.  33,  14  S.  W.  297;  Winfield  Nat.  Bank  v.  Croco,  46  Kan.  620, 
26  Pac.  939.  See  post,  p.  301,  and  cases  cited.  A  threat  to  "make  complaint" 
and  send  the  person  threatened  to  prison  is  not  duress,  where  the  threats  do 
not  specify  an  offense  for  which  imprisonment  may  be  had.  Kruschke  v. 
Stefan,  83  Wis.  373,  53  N.  W.  679.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  | 
95;    Cent.  Dig.  §§  J,S1-.',J,0. 

T  2  Co.  Inst.  483 ;    Shep.  Touch.  6 ;   post,  p.  300.  •  1  Pars.  Cont  393. 


300  REALITY   OF   CONSENT  (Ch.  7 

^X-Lhctnodern  rule,  however,, tJareatS-  and  fear  of  battery  to  the, 
person  are  sufficient  to  constitute  duress,  if  the  mind  of  the  party 
is  actually  overcome  thereby.' 

It  is  not  necessary  that  the  threats  be  made  directly  to  the  per- 
son to  be  influenced ;  it  is  sufficient  if  they  are  made  to  a  third 
person  with  intent  that  they  be  communicated  to  him,  and  they 
are  actually  communicated/' 

Duress  of  Imprisonment 

IrnprisonnLeiit-is.-any  restraint  of  a  person's  lib.erty^,.3«hpther-it 
be  in  prison  or  elsewhere.  Any  unlawful  imprisonment,  whatever 
may  be  the  ground  of  illegality,  constitutes  duress,  and  avoids  a 
contract  entered  into  by  the  person  imprisoned  for  the  purpose 
of  regaining  his  liberty. ^^  Under  the  older  rule,  the  imprisonment 
must  have  been  illegal ;  lawful  imprisonment,  whatever  might  be 
the  circumstances,  was  not  regarded  as  duress ;  ^'  and  this  rule 
has  been  adhered  to  in  some  of  the  modern  cases.^*  By  the  overr 
whelming  weight  of  modern  authority,  however,  the  rule  has  been 
so  far  modified  that  now  even  a  legal  imprisonment  will  consti^ 
tute  duress  if  the  process  is  sued  out  maliciously  and  without 
probable  cause,  or  if  it  is  sued  out  with  probable  cause,  but  foF 
an  unlawful  purpose;  as,  for  instance,  where  a  legal  arrest  for 
crime  is  procured  for  the  purpose  of  coercing  payment  of  a  private 
demand,  or  if  the  imprisonment,  though  legal,  is  made  unjustly 
oppressive.^*     All  the  courts  agree,  however,  that  if  the  imprison- 

•  Pierce  v.  Brown,  7  Wall.  205.  19  L.  Ed.  134;  Foshay  t.  Ferguson,  5  Hill 
(N.  Y.)  154;  Love  t.  State,  78  Ga.  6G,  3  S.  E.  893,  6  Am.  St.  Rep.  234.  See 
"Contracts,"  Dec.  Dig.    (Key-No.)   §  95;    Cent.  Dig.  §§  J,31-U0. 

10  Price  V.  Bank  of  Poynette.  144  Wis.  190.  12S  N.  W.  895.  See  "Con- 
tracts." Dec.  Dig.   (Key-No.)  §  95;    Cent.  Dig.  §§  J,31-U0. 

11  Osborn  v.  Bobbins,  36  N.  Y.  865;  Guilleanme  v.  Rowe.  94  N.  Y.  268,  46 
Am.  Rep.  141;  Stepney  t.  Lloyd,  Cro.  Eliz.  647,  Ewell,  Lead.  Gas.  760;  Fish- 
er r.  Shattuck,  17  Pick.  (Mass.)  252;  Alexander  v.  Pierce,  10  N.  H.  494; 
Whitefield  v.  Longfellow,  13  Me.  146;  Thompson  r.  Lockwood,  15  Johns.  (N. 
Y.)  256;  Bowker  v.  Lowell,  49  Me.  429;  Tilley  v.  Damon,  11  Gush.  (Mass.) 
247.     See  "Contracts,"  Dec.  Dig.   (Key-No.)  §  95;    Cent.  Dig.  §§  J,S1-U0. 

12  2  Go.  Inst  483  ;    Shop.  Touch.  6. 

IS  Clark  v.  Turnbull,  47  N.  J.  Law,  265,  54  Am.  Rep.  157;  Kelsey  r.  Hob- 
by, 16  Pet.  269,  10  L.  Ed.  961 ;  Taylor  v.  Gottrell,  16  111.  93 ;  Heaps  v.  Dun- 
ham, 95  111.  583 ;  McGormick  Harvester  Go.  v.  Miller,  54  Neb.  644,  74  N,  W. 
1061.     See  "Contra<;ts,"  Dec.  Dig.   (Key-No.)  §  95;    Cent.  Dig.  §§  Jf81-U0. 

1*  Watkins  v.  Baird,  6  Mass.  506,  4  Am.  Dec.  170 ;  Richardson  v.  Duncan, 
S  N.  H.  508 ;  Seiber  v.  Price,  26  Mich.  518 ;  Eadie  v.  Sliinmon.  26  N.  Y.  9,  82 
Am.  Dec.  395;  Schoener  v.  Lissauer,  107  N.  Y,  111,  13  N.  E.  741;  Bane  v. 
Detrlck,  52  111.  19;  Work's  Appeal,  59  Pa.  444;  Phelps  v.  Zuschlag,  34  Tex. 
871 ;    Holmes  r.  Hill,  19  Mo.  159 ;   Foley  y.  Greene,  14  R.  I.  618,  51  Am.  Rep. 


^ 


g§  142-144)  DURESS  301 

merit  is  lawful,  and  there  is  no  abuse  of  process,  there  is  no 
duress.*' 

The  rule  that  the  imprisonment  must  be  unlawful  applies  equal- 
ly to  duress  per  minas,  where  the  threat  is  of  imprisonment.  A 
threat  of  unlawful  arrest  and  imprisonment  is  duress,*®  but,  as 
a  rule,  a  threat  of  lawful  imprisonment  is  not.*'^  A  threat,  for 
instance,  by  a  creditor,  to  bring  a  suit  against  his  debtor,  and 
procure  his  arrest  therein,  is  not  duress  where  the  creditor  may 
lawfully  so  proceed.*'  It  has  also  been  said,  without  qualification, 
that,  if  a  person  has  been  wronged  by  the  embezzlement  or  other 
criminal  act  of  another,  it  is  not  duress  to  threaten  him  with  a 
criminal  prosecution,  and  thereby  coerce  him  into  giving  a  notCj 
or  otherwise  settling  for  the  injury.*'  As  we  have  seen,  however, 
a  strictly  legal  imprisonment  procured  for  the  purpose  of  enforcing 
a  private  demand  is  an  abuse  of  process,  and  constitutes  duress  ; 
and  on  the  same  principle  it  has  been  held  duress  to  threaten 
imprisonment  for  such  a  purpose.^" 

419;  Town  of  Sharon  v.  Gager,  46  Conn.  189;  Bentley  v.  Robson,  117  Mich. 
691,  76  N.  W.  146;  Behl  v.  Schuett,  104  Wis.  76,  80  N.  W.  73.  See  ''Gon- 
tracts."  Dec.  Dig.   {Key-No.)  §  95;    Cent.  Dig.  §§  1,31-^0. 

IB  Soule  V.  Bouney,  37  Me.  128;  Prichard  v.  Sharp,  51  Mich.  432,  16  N.  W. 
798 ;  Felton  v.  Gregory,  130  Mass.  176 ;  Taylor  v.  Cottrell,  16  111.  93 ;  Nea- 
ley  V.  Greenough,  25  N.  H.  325;  Smith  v.  Atwood,  14  Ga.  402;  Stouffer  v. 
Latshaw,  2  Watts  (Pa.)  165,  27  Am.  Dec.  297;  State  v.  Such,  53  N.  J.  Law, 
351,  21  Atl.  852;  Meek  v.  Atkinson,  1  Bailey  (S.  C.)  84,  19  Am.  Dec.  653; 
Stebbins  v.  Niles,  25  Miss.  267,  349;  Mascolo  v.  Montesanto,  61  Conn.  50,  23 
Atl.  714,  29  Am.  St.  Rep.  170;  Marvin  v.  Marvin,  52  Ark.  425,  12  S.  W.  875, 
20  Am.  St.  Rep.  191;  Harrison  Tp.  y.  Addison,  176  Ind.  389,  96  N.  E.  146. 
And  see  Medrano  v.  State,  32  Tex.  Cr.  R.  214,  22  S.  W.  684,  40  Am.  St  Rep. 
775.     See  "Contracts"  Deo.  Dig.   {Key-No.)  f  95;    Cent.  Dig.  §§  4S1-U0. 

18GALUSHA  V.  SHERMAN,  105  Wis.  263,  81. N.  W.  495,  47  L.  R.  A.  417, 
Throckmorton  Cas.  Contracts,  200.  And  see  ante,  p.  299,,  See  "Contracts," 
Dec,  Dig.    {Key-No.)  §  95;    Cent.  Dig.  §§  4S1-U0. 

IT  Mullin  V.  Leamy,  80  N,  J.  Law,  484,  79  Atl.  257.  See  "Contracts,"  Dec. 
Dig.  {Key-No.)  §  95;   Cent.  Dig.  §§  J^Sl-UO. 

i«  Dunham  v.  Griswold,  100  N.  Y.  224,  8  N.  E.  76;  Clark  v.  Turnbull,  47 
N.  J.  Law,  205,  54  Am.  Rep.  157;  Hilborn  v.  Bucknam,  78  Me.  482,  7  Atl. 
272,  57  Am.  Rep.  816.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  95;  Cent. 
Dig.  g§  4S1-W. 

i»Eddy  V.  Herrln,  17  Me.  338,  35  Am.  Dec.  201;  Hilborn  v.  Bucknam,  78 
Me.  482,  7  Atl.  272,  57  Am.  Rep.  810;  Taylor  v.  Cottrell,  16  111.  93;  Sanford 
T.  Soraborger,  20  Neb.  295,  41  N.  W.  1102;  Thorn  v.  Pinkham,  84  Me.  103,  24 
Atl.  718,  30  Am.  St.  Rep.  335 ;  Weber  v.  Barrett,  125  N.  Y.  IS,  25  N.  E.  1008 ; 
Compton  V.  Bank,  96  111.  301,  36  Am.  Rep.  147.  See  "Contracts,"  Dec.  Dig. 
{Key-No.)   §  95;    Cent.  Dig.  §§  J,31-'i'i0. 

2 "See  Morse  v.  Woodworth,  1.55  Mass.  233,  27  N.  E.  1010,  29  N.  E.  525; 
Adams  v.  Bank,  116  N.  Y.  606,  23  N.  E.  7,  6  li.  R.  A.  491,  15  Am.  St  Rep. 
447;  Miller  v.  Brydon,  34  Mo.  App.  602;  Morrison  v.  Faulkner,  80  Tex.  128, 
15  S.  W.  797 ;    Schultz  v.  Catlin,  78  Wis.  611,  47  N.  W.  946 ;    Morrill  t.  Night- 


302  REALITY   OF   CONSENT  (Ch.  7 

Duress  of  Goods 

Under  the  stricter  rule  which  formerly  prevailed,  a  promise  was 
not  given  under  duress  if  made  in  consideration  of  the  release  of 
goods  from  unlawful  destruction  or  detention,  and  there  is  ipodern 
authority  to  the  same  effect.*^  Most  courts,  however,  have  estab- 
lished a  more  liberal  rule,  and  regard  duress  of  goods  under 
oppressive  circumstances  as  sufficient  to  avoid  a  contract.*'  Du- 
ress in  this  connection  must  not  be  confounded  with  want  of 
consideration.  If  the  detention  were  obviously  without  right,  the 
promise  would  be  void  because  of  want  of  consideration ;  if  the 
right  were  doubtful,  the  promise  might  be  supported  by  a  com- 

ingale,  93  Cal.  452,  28  Pac.  1068,  27  Am.  St.  Rep.  207 ;  Bryant  v.  Peck,  154 
Mass.  460,  2S  N.  E.  678 ;  Llghthall  v.  Moore,  2  Colo.  App.  554,  31  Pac.  oil ; 
Heaton  v.  Norton  Co.  State  Bank,  59  Kan.  281,  52  Pac.  876.  See  "Contracts" 
Dec.  Dig.  (Key-No.)  §  95;    Cent.  Dig.  §§  lt31-JfJ,0. 

21  Atlee  V.  Backhouse,  3  Mees.  &  W.  633 ;  Skeate  v.  Beale,  11  Adol.  &  E. 
9S3;  Hazelrigg  v.  Donaldson,  2  Mete.  (Ky.)  445.  See  "Contracts"  Dec^  Dig. 
(Key-No.)  §  95;   Cent.  Dig.  §§  I,S1-U0. 

2  2  Lonergan  v.  Buford,  148  U.  S.  581,  13  Sup.  Ct.  684,  37  L.  Ed.  569;  U.  S. 
V.  Huckabee,  16  Wall.  432,  21  L.  Ed.  457 ;  Foshay  v.  Ferguson,  5  Hill  (N.  Y.) 
154;  Sasportaa  v.  Jennings,  1  Bay  (S.  C.)  470;  Harmony  v.  Bingham,  12 
N.  Y.  99,  62  Am.  Dec.  142 ;  White  v.  Heylman,  34  Pa.  142 ;  Motz  v.  Mitchell, 
91  Pa.  114 ;  Miller  v.  Miller,  68  Pa.  486 ;  Peniberton  v.  Williams,  87  111.  15 ; 
Scholey  v.  Mumford,  60  N.  Y.  498;  McPherson  v.  Cox,  86  N.  Y.  472;  Craw- 
ford V.  Cato,  22  Ga.  594;  Bennett  v.  Ford,  47  Ind.  264;  Oliphant  v.  Mark- 
ham,  79  Tex.  543,  15  S.  W.  569,  23  Am.  St.  Rep.  363 ;  McCormick  v.  Daltou. 
53  Kan.  146,  35  Pac.  1113 ;  Fuller  v.  Roberts,  35  Fla.  110,  17  South.  359.  A 
note  given,  or  money  paid,  to  obtain  release  of  goods  from  attachment  fraud- 
ulently obtained,  may,  under  some  circumstances,  be  avoided  or  recovered 
back.  Chandler  v,  Sanger,  114  Mass.  364,  19  Am.  Rep.  367 ;  Collins  v.  West- 
bury,  2  Bay  (S.  C.)  211,  1  Am.  Dec.  643;  Spaids  v.  Barrett,  57  111.  2S9,  11 
Am.  Rep.  10;  Nelson  v.  Suddarth,  1  Hen.  &  M.  (Va.)  350.  But  seizure  of 
property  claimed  by  A.  under  attachment  against  B.  is  not  duress  of  A. 
Kingsbury  v.  Sargent,  83  Me.  230,  22  Atl.  105.  So,  where  a  note  is  given,  or 
money  paid,  to  prevent  seizure  of  property  under  execution  fraudulently  ob- 
tained, Thurman  v.  Burt,  53  111.  129;  or  under  warrant  for  the  collection 
of  illegal  tax  or  assessment,  Boston  &  S.  Glass  Co.  v.  City  of  Boston,  4  Mete. 
(Mass.)  181;  Bruecher  v.  Village  of  Port  Chester,  101  N,  Y.  240,  4  N.  E.  272; 
Bradford  v.  City  of  Chicago,  25  111.  411.  Exactions  by  can-ier  before  de- 
delivery  of  property.  Beckwith  v.  Frisbie,  32  Vt.  559 ;  Tutt  v.  Ide,  3  Blatchf . 
249,  Fed.  Cas.  No.  14,275b ;  Harmony  v.  Bingham,  supra.  Refusal  by  car- 
rier to  transport  freight.  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Cravens,  57  Ark. 
112,  20  S.  W.  80.3,  18  L.  R.  A.  527.  38  Am.  St.  Rep.  230.  Refusal  by  carrier 
to  carry  stock  which  has  been  loaded  on  cars,  unless  shipper  will  sign  special 
contract.  Atchison  R.  Co.  v.  Dill,  48  Kan.  210,  29  Pac.  148.  Refusal  by 
banker  to  honor  check  unless  fraudulent  claim  is  acceded  to,  held  duress- 
Adams  V.  Schiffer,  11  Colo.  15,  17  Pac.  21,  7  Am.  St.  Rep.  202.  Threat  to  file 
mechanic's  lien.  Gates  v.  Dundon  (City  Ct.  N.  Y.)  IS  N.  Y.  Supp.  149.  Ex- 
actions by  customs  officer  as  condition  to  delivery  of  property.     Maxwell  v. 


§§  142-144)  DURESS  303 

promise.  A  mere  refusal  to  pay  money  unless  the  creditor  signs 
a  receipt  in  full  is  not  duress;  ^^  nor  is  the  refusal  of  a  debtor  to 
pay  a  debt,  even  where  the  creditor  is  in  straitened  circumstances 
and  needs  the  money.^*  So  a  threat  to  institute  a  civil  action,^" 
or  to  levy  an  attachment  or  execution,*'  is  not  duress. 

Against  Whom 

As  a  rule^a  contract  entered  into  in  order  to  relieve  a  third 
person  is  not  voidable  on  the  ground  of  duress. ^^  It  should  be 
noted,  however,  that  a  simple  contract,  the  consideration  for  which 
is  the  discharge  of  a  third  person  from  illegal  imprisonment,  would 
be  void  for  want  of  consideration.**     Though  the  law   does  not 

Griswold,  10  How.  242,  13  L.  Ed.  405;  Elliott  y.  Swartwout,  10  Pet  137,  9 
L.  Ed.  373.  Threats  to  prevent  clearance  of  vessel,  vrith  power  to  carry  out, 
is  duress  of  ship's  master.  Baldwin  v.  Timber  Co.,  65  Hun,  625,  20  N.  Y. 
Supp.  496.  And  see  McPherson  v.  Cox,  supra.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  95;    Cent.  Dig.  §§  4Sl-J,JiO. 

28  Earle  v.  Berry,  27  R.  I.  221,  61  Atl.  671,  1  L.  R.  A.  (N.  S.)  867,  8  Ann. 
Cas.  875.     See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  95;   Cent.  Dig.  §§  IfSl-UO. 

24  Hackley  v.  Headley,  45  Mich.  5G9,  8  N.  W.  511;  Seeor  v.  Clark,  117  N.  Y. 
350,  22  N.  E.  754;  Cable  v.  Foley,  45  Minn.  421,  47  N.  W.  1135;  Adams  v. 
Schififer,  11  Colo.  15,  17  Pac.  21,  7  Am.  St.  Rep.  202;  Doyle  v.  Church,  133 
N.  Y.  372,  31  N.  E.  22L  See  "Contracts,"  Deo,  Dig.  {Key-Na.)  §  95;  Cent. 
Dig.  §§  431-UO. 

2  0  McClair  v.  Wilson,  18  Colo.  82,  31  Pac.  502;  Whittaker  v.  Improvement 
Co.,  34  W.  Va.  217,  12  S.  E.  507 ;  Wilson  S.  M.  Co.  v.  Curry,  126  Ind.  161,  25 
N.  E.  896;  Atkinson  v.  Allen,  71  Fed.  58,  17  C.  C.  A.  570;  York  v.  Hinkle, 
80  Wis.  624,  50  N.  W.  895,  27  Am.  St.  Rep.  73;  Bestor  v.  Hickie,  71  Conn. 
181,  41  Atl.  555 ;  Hart  v.  Strong,  183  111.  349,  55  N.  E.  629.  See  "Contracts," 
Dec.  Dig.   (Key-No.)   §  95;    Cent.  Dig.  §§  431-UO. 

26  Wilcox  V.  Howland,  23  Pick.  (Mass.)  167;  Waller  v.  Cralle,  8  B.  Mon. 
(Ky.)  11;  Stover  v.  Mitchell,  45  111.  213.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  95;   Cent.  Dig.  §§  431-J,/,0. 

27  Robinson  v.  Gould,  11  Cush.  (Mass.)  55;  Plummer  v.  People,  16  111.  358; 
Phillips  V.  Henry,  160  Pa.  24,  28  Atl.  477,  40  Am.  St.  Rep.  706;  Jones  v. 
Turner,  5  Litt.  (Ky.)  147;  Wright  v.  Remington,  41  N.  J.  Law,  48,  32  Am. 
Rep.  180 ;  Spaulding  v.  Crawford,  27  Tex.  155 ;  Lewis  v.  Bannister,  16  Gray 
(Mass.)  500  (creditors).  A  surety  cannot  avoid  a  common-law  bond  or  note 
on  the  ground  that  his  principal  was  under  duress.  Huscombe  v.  Standing, 
Cro.  Jac.  187;  Graham  v.  Marks,  98  Ga.  67,  25  S.  B.  931.  Contra,  Strong  v. 
Grannis,  26  Barb.  (N.  Y.)  122.  But  it  is  otherwise  in  the  case  of  statutory 
bonds,  such  as  a  bond  given  under  a  statute  to  release  the  principal  from 
imprisonment,  where  the  imprisonment  Is  illegal.  In  such  case  the  officer  has 
no  right  to  take  the  bond,  and  it  Is  void.  Thompson  v.  Lockwood,  15  Johns. 
(N.  Y.)  256.  And  see  State  v.  Brantley,  27  Ala.  44 ;  Patterson  v.  Gibson,  81 
Ga.  802,  10  S.  E.  9,  12  Am.  St.  Rep.  356;  Fisher  v.  Shattuck,  17  Pick,  (Mass.) 
252;  Jones  v.  Turner,  5  Litt  (Ky.)  147.  But  see  Plummer  v.  People,  16  111. 
358;  Huggins  v.  People,  39  111.  246;  Inhabitants  of  Bordentown  Tp.  v.  Wal- 
lace, 50  N.  J.  Law,  13,  11  AtL  267.  See  "Contracts,"  Deo.  Dig.  (Key-No.)  i 
95;   Cent.  Dig.  §§  431-440. 

2  8  Ante,  p.  1.5.3. 


304  REALITY   OF   CONSENT  (Ch.  T 

regard  a  person  as  under  duress  who  enters  into  a  contract  to 
relieve  a  stranger,  it  is  otherwise  where  the  person  relieved  is  a 
near  relative,  as  a  husband,  wife,  parent,  or  child. ^'  These  are 
the  only  relationships  generally  mentioned  in  the  books,  but  the 
rule  has  been  extended  to  other  relationships,  as  of  brother,  sister, 
grandparent,  or  grandchild.^* 

By  Whom 

The  duress,  to  be  available  as  a  defense,  must  have  been  inflicted 
or  threatened  by  the  other  party  to  the  contract,  or  by  some  one 
acting  with  his  connivance.*^  A  person  entering  into  a  contract 
with  another  under  duress  exercised  by  a  third  person  may  avoid 
the  contract  if  the  third  person  was  the  other  party's  agent,  or 
if  the  other  party  knew  the  circumstances,*^  but  not  if  he  acted  in 
good  faith  and  without  such  knowledge. 

Effect 

A  contract  is  not  void  because  it  was  entered  into  under  duress, 
but,  as  in  the  case  of  fraud,  is  merely  voidable  at  the  option  of 
the  injured  party,**  and  stands  unless  he  sees  fit  to  avoid  or  rescind 

2 »  Harris  v.  Carmody,  131  Mass.  51,  41  Am.  Rep.  1S8;  Plummer  v.  People, 
16  111.  360;  First  Nat.  Bank  v.  Bryan,  62  Iowa,  42,  17  N.  W.  165;  Lomerson 
V.  Johnston,  44  N.  J.  Eq.  93,  13  Atl.  8;  Brooks  v.  Berryhill,  20  Ind.  97;  South- 
ern Exp.  Co.  V.  Duffey,  48  Ga.  361 ;  Adams  v.  Bank,  116  N.  Y.  606,  23  N.  E.  7, 
6  L.  R.  A.  491,  15  Am.  St.  Rep.  447;  McClatchie  v.  Haslam,  63  Law  T.  376; 
Meeeh  v.  Lee,  82  Mich.  274,  46  N.  W.  383 ;  Bryant  T.  Peck,  154  Mass.  460,  28 
N.  E.  678 ;  City  Nat  Bank  v.  Knsworm,  8S  Wis.  188,  59  N.  W.  564,  26  L.  R.  A. 
48,  43  Am.  St  Rep.  880 ;  Giddinga  v.  Iowa  Sav.  Bank,  104  Iowa,  676,  74  N.  W. 
21 ;  Heaton  v.  Norman  Co.'s  Bank,  59  Kan.  281,  52  Pac.  870 ;  Davis  r.  Smith, 
68  N.  H.  253,  44  Atl.  384,  73  Am.  St.  Rep.  584 ;  International  Harvester  Co.  v. 
Voboril,  187  Fed.  973,  110  C.  Q  A.  311.  See  "Contracts;'  Dec.  Dig.  {Eey-No.) 
§  95;  Cent.  Dig.  §§  1,S1-H0. 

80  Schultz  V.  Catlin,  78  Wis.  611,  47  N.  W.  946;  Bradley  v.  Irish,  42  111. 
App.  85;  Nebraska  Mut  Bond  Assn  v.  Klee,  70  Neb.  383,  97  N.  W.  476.  It 
seems  that  it  does  not  extend  to  master  and  sei-vant.  1  Rolle,  Abr.  687;  Bac. 
Abr.  "Duress,"  B;  2  Brownl.  276.  See  ''Contracts"  Dec.  Dig.  (Key-No.)  §  95; 
Cent.  Dig.  §§  J,S1-J,J,0. 

311  Rolle,  Abr.  688;  Fairbanks  v.  Snow,  145  Mass.  153,  13  N.  E.  596,  1 
Am.  St  Rep.  446;  Fightmaster  v.  Levi  (Ky.)  17  S.  W.  195;  Sherman  v.  Sher- 
man (Com.  PI.  N.  Y.)  20  N.  Y.  Supp.  414;  Compton  v.  Bank.  96  111.  301,  36 
Am.  Rep.  147;  Schwartz  v.  Schwartz,  29  111.  App.  516;  Mullin  v.  Leamy,  80 
N.  J.  Law,  484,  79  Atl.  257;  Ely  v.  Hartford  Life  Ins.  Co.,  128  Ky.  799,  110 
S.  W.  265,  33  Ky.  Law  Rep.  272.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  95; 
Cent.  Dig.  §§  J,31-U0. 

3  2  GALUSHA  V.  SHERMAN,  105  Wis.  263,  81  N.  W.  495,  47  L.  R.  A.  417, 
Throckmorton  Cas.  Contracts,  200 ;  Fairbanks  v.  Snow,  supra ;  McClatchie  v 
Haslam,  63  Law  T.  376.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  95;  Cent. 
Dig.  §§  431-UO. 

38  Royal  V.  Goss,  154  Ala.  117,  45  South.  231,  in  which,  however,  it  is  sug- 


§§    145-14G)  UNDUE    INFLUENCE  305 

it.  lie  may  either  ratify  or  disaffirm  it,  and  may  do  so  by  his 
conduct.'*  The  rules  as  to  the  right  to  rescind  a  contract  for  fraud 
apply  with  equal  force  here,  and  it  is  unnecessary  to  repeat  them. 

UNDUE  INFLUENCE 

145.  Undue  influence  is  a  species  of  fraud.     It  may  be  said  gen- 

erally to  consist — 

(a)  In  the  use  by  one  in  whom  confidence  is  reposed  by  another, 

or  who  holds  a  real  or  apparent  authority  over  him,  of 
such  confidence  or  authority  for  the  purpose  of  obtain- 
ing an  unfair  advantage  over  him. 

(b)  In  taking   an  unfair   advantage   of  another's   weakness   of 

mind. 

(c)  In  taking  a  grossly  oppressive  and  unfair  advantage  of  an- 

other's necessities  and  distress. 

146.  EFFECT.     Undue  influence  renders  a  contract  voidable  at 

the  option  of  the  injured  party. 

Courts  of  equity  have  always  given  a  wider  interpretation  to  the 
term  "fraud"  than  that  adopted  by  the  courts  of  common  law. 
Looking  beyond  definite  false  and  fraudulent  statements,  they 
have  inferred  from  a  long  course  of  conduct,  from  the  peculiar 
relations  of  the  parties,  or  from  the  circumstances  of  one  of  them, 
that  an  unfair  advantage  has  been  taken  of  the  promisor,  and 
that  his  promise  ought  not,  in  equity,  to  bind  him.  The  taking 
of  such  an  unfair  advantage  is  sometimes  called  "fraud,"  but  it  is 
more  convenient,  for  the  purpose  of  distinguishing  it  from  the 
kind  of  fraud  with  which  we  have  already  dealt,  to  call  it  the 
"exercise  of  undue  influence."  "     It  is  difficult  to  give  a  clear  and 

ge-sted  that  the  contract  will  be  void  if  the  duress  is  so  severe  that  the  per- 
son on  whom  it  is  imposed  is  converted-  into  a  mere  automaton.  See  "Co)i- 
tracts."  Dec.  Dig.  (Key-No.)  §  95;    Cent.  Dig.  §§  JiSl-l'fO. 

34  Miller  v.  Minor,  98  Mich.  163,  57  N.  W.  101,  39  Am.  St.  Rep.  524;  Fair- 
banks V.  Snow,  145  Mass.  153,  13  N.  E.  .'596.  1  Am.  St.  Rep.  446 ;  Oregon  Pac. 
K.  Co.  V.  Forrest,  128  N.  Y.  83,  28  N.  E.  137;  Veach  v.  Thompson,  15  Iowa, 
880;  Belote  v.  Henderson,  5  Cold.  (Tenn.)  472,  98  Am.  Dec.  432;  Brown  v. 
Peck,  2  Wis.  261 ;  Deputy  v.  Stapleford,  19  Cal.  302 ;  Eberstein  v.  Willets,  134 ' 
111.  101,  24*N.  E.  967;  Bush  v.  Brown,  49  Ind.  577,  19  Am.  Rep.  695;  Sorn- 
borger  v.  Sanford.  34  Neb.  498,  ."2  X.  W.  368 ;  Commercial  Nat.  Bank  v.  Wheel- 
ock,  .52  Ohio  St.  534.  40  N.  E.  6.36,  49  Am.  St.  Rep.  7.38.  Ante,  p.  291.  A  nego- 
tiable instrument  executed  under  duress  is  binding  in  hands  of  bona  fide  pur- 
chaser for  value.  Hogan.v.  Moore,  48  Ga.  l.'ili;  (Yurk  v.  I'ea.se,  41  N.  H.  414; 
Thompson  v.  Niggley,  .^.:!  Kan.  004,  35  Pac.  290.  26  L.  R.  A.  803.  See  "Con^ 
tract.i,"  Dec.  Dig.   {Kcji-No.)  §  95;    Cent.  Dig.  §§  J,31-j!,J,0. 

SB  Anson,  Cout.  (4th  Ed.)  165. 
Clabk  Cont.(3d  Ed.)— 20 


306  REALITY   OF   CONSENT  (Ch.  7 

concise  definition  of  "undue  influence"  because  of  the  wide  mean- 
ing of  the  term.  The  definition  given  in  the  black-letter  text, 
and  taken  substantially  from  the  proposed  New  York  Code,  is 
probably  as  good  as  can  be  framed  without  going  beyond  a  mere 
definition.^*  Another  good  definition  is  given  by  an  English  judge, 
who,  in  speaking  of  the  sort  of  cases  "which  *  *  ♦  raise,  from 
the  circumstances  and  conditions  of  the  parties  contracting,  a 
presumption  of  fraud,"  says:  "Fraud  does  not  here  mean  deceit 
or  circumvention;  it  means  an  unconscientious  use  of  the  power 
arising  out  of  these  circumstances  and  conditions;  and,  when  the 
relative  position  of  the  parties  is  such  as  prima  facie  to  raise 
this  presumption,  the  transaction  cannot  stand  unless  the  person 
claiming  the  benefit  of  it  is  able  to  repel  the  presumption  by  con- 
trary evidence,  proving  it  to  have  been,  in  point  of  fact,  fair,  just, 
and  reasonable."  '^ 

Neither  in  law  nor  in  morals  is  a  person  standing  in  confidential 
relations  to  another  prohibited  from  exerting  any  influence  what- 
ever to  obtain  a  benefit  to  himself.  The  influence  must  be  what 
the  law  regards  as  "undue  influence."  *'  "Influence  obtained 
by  modest  persuasion,  and  arguments  addressed  to  the  under- 
standing, or  by  mere  appeals  to  the  afifections,  cannot  properly 
be  termed  'undue  influence'  in  a  legal  sense  ;^"  but  influence.jib- 
tained  by  flattery,  importunity,  superiority  of  will,  mind,  or  char- 
acter,  or  by  what  art  soever  that  human  thought,  ingenuitjj_.or 
cunning  may  employ,  which  would  give  dominion  over  the  will"_ 
of  a  person  "to  such  an  extent  as  to  destroy  the  free  agency,*" 
or  constrain  hiTn~T6  do  against  "his  will  what  he  is  unable  to 
refuse,  is  such  an  influence  as  the  law  condemns  as  undue."  ** 

««  Proposed  N.  T.  Civ.  Code,  §  231. 

8  7  Lord  Selboume,  in  Earl  of  Aylesford  v.  Morris,  8  Ch.  490.  See,  also, 
Green  v.  Roworth,  113  N.  Y.  462,  21  N.  B.  1G5;  In  re  Nelson's  Will,  39  Minn. 
204,  39  N.  W.  143.  See  "Contracts,",  Dec.  Dig.  (Key-^^o.)  §  96;  Cent.  Dig.  §§ 
W,  1155,  1169. 

88  Wallace  v.  Harris,  32  Mich.  397.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
96;  Cent.  Dig.  §§  Ul,  1155,  1169;  "Deeds,"  Dec.  Dig.  (Key-No.)  §  72;  Cent. 
Dig.  §§  190-199. 

3  0  Rogers  v.  Higgins,  57  111.  244;  Wise  v.  Foote,  81  Ky.  10;  Hale  v.  Cole,  31 
W.  Va.  576,  8  S.  E.  516 ;  Beith  v.  Beith,  76  Iowa,  GOl,  41  N.  W.  371 ;  Black  v. 
Foljambre,  39  N.  J.  Eq.  234 ;  Bturtevant  v.  Sturtevant,  116  111.  340,  6  N.  E.  428 ; 
Bowdoin  College  v.  Merrett  (C.  C.)  75  Fed.  480;  In  re  Coleman's  Estate,  193 
Pa.  605,  44  Atl.  10S5 ;  Du  Bose  v.  Kell,  90  S.  C.  196,  71  S.  E.  371  (full  state- 
ment of  rules)  ;  Fjone  v.  Fjone,  16  N.  D.  100,  112  N.  W.  70.  See  "Contracts." 
Dec.  Dig.  (Key-No.)  §  96;    Cent.  Dig.  §§  Ul,  1155,  1169. 

*o  Latham  v.  Udell,  38  Mich.  238;  Layman  v.  Conrey,  60  Md.  286.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  96;  Cent.  Dig.  §§  4-'tl,  1155,  1169. 

*i  Schofield  V.  Walker  (In  re  Disbrow's  Estate)  58  Mich.  96,  24  N.  W,  624. 


§§    145-]  iQ)  UNDUE   INFLUENCE  307 

The  Presumption  from  Circumstances 

When  it  is  said  that  equity  presumes  prima  facie  the  exercise  of 
undue  influence  from  the  circumstances,  we  mean  that,  when  certain 
circumstances  are  shown  to  have  existed,  the  court  will,  from  that 
alone,  hold  that  the  contract  was  procured  by  undue  influence,  and 
will  relieve  the  promisor  unless  the  promisee  assumes  the  burden 
of  proof,  and  shows  that  everything  was  fair  and  just.*'  In  some 
cases  the  relation  alone,  being  confidential,  raises  the  presumption. 
In  others,  the  confidential  character  of  the  relation  must  be  shown. 
In  others,  want  or  inadequacy  of  consideration  will  raise  the  pre- 
sumption.*' 

"We  may  therefore  frame  the  question  we  have  to  discuss  some- 
what in  this  way :  When  a  man  demands  equitable  remedies,  either 
as  plaintiff  or  defendant,  seeking  to  escape  the  efl["ects  of  a  grant 
which  he  has  made  gratuitously,  or  a  promise  which  he  has  given 
upon  a  very  inadequate  consideration,  what  must  be  shown  in  addi- 
tion to  this  in  order  to  raise  the  presumption  that  undue  influence 
has  been  at  work?"  ** 

Relationship  of  Parties — Parental  and  Quasi  Parental  Relation 

One  class  of  circumstances  which  will  raise  the  presumption  that 
undue  influence  was  used  in  procuring  another  to  enter  into  a  con- 
tract is  where  the  party  benefited  stood  in  some  such  relation  to  him 
^sJP.^^"^^r  him  peculiarly  subject  to  influence.  Parental  or  quasi 
parental  relations  subsisting  between  promisor  and  promisee,  or 
grantor  and  grantee,  will  raise  this  presumption.*'     Where  an  or- 

See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;  Cent.  Dig.  §§  m,  1155,  1169; 
"Wills,"  Dec.  Dig.  {Key-No.)  §§  155-159;   Cent.  Dig.  §§  S75-3S7. 

*2  McPARLAND  v.  LARKIN,  155  111.  84,  89  N.  E.  609,  Throckmorton  Cas. 
Contracts,  212;  Dent.  v.  Bennett,  4  Mylne  &  C.  209;  Cowee  v.  Cornell,  75  N. 
Y.  91,  31  Am.  Rep.  428,  at  page  99 ;  Fisher  v.  Bishop,  108  N.  T.  25,  15  N.  E. 
3.31,  2  Am.  St.  Rep.  857;  Woodbury  v.  Woodbury,  141  Mass.  829,  5  N.  E.  275, 
55  m.  Rep.  479 ;  Clreenfield's  Estate,  14  Pa.  489 ;  Jones  v.  Lloyd,  117  111.  597,  7 
N.  R  119;  Sands  v.  Sands,  112  111.  225;  Ward  v.  Armstrong,  84  111.  151; 
Zeigler  v.  Hughes,  55  111.  288;  Jennings  v.  McConnel,  17  111.  148;  Casey  v. 
Casey,  14  lU.  112.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;  Cent.  Dig.  §§ 
Ul,  11G9. 

■*3  Ante,  p.  144.  The  acceptance  of  a  voluntary  donation  throws  upon  the 
acceptor  the  necessity  of  proving  that  the  transaction  was  just  Houghton  v. 
Houghton,  15  Beav.  299.  See  "Gifts,"  Dec.  Dig.  (Key-No.)  §  ^7;  Cent.  Dig.  §§ 
81-86;   "Parent  and  Child,"  Cent.  Dig.  §  131. 

**  Anson,  Cont.  (4th  Eld.)  160. 

*B  Taylor  V.  Taylor,  8  How.  183,  12  L.  Ed.  1040;  Mlskey's  Appeal,  107  Pa. 
611;  >:oble's  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  00  Am.  Rep.  175; 
Highberger  v.  Stiiller,  21  Md.  328,  83  Am.  Dec.  593;  Berkmeyer  v.  Kellerman, 
32  Ohio  St.  239,  30  Am.  Rep.  577;  Brown  v.  Burbank,  G4  CaL  99,  27  Pac.  940; 
Clutter  V.  Clutter,  4  S.  W.  182,  8  Ky.  Law  Rep.  95G;    Sayles  v.  Christie,  187 


508  REALITY   OF   CONSENT  (Cll.  7 

phan  who  had  been  living  with  her  uncle  for  seven  years  became  se- 
curity for  him  soon  after  attaining"  her  majority,  it  was  said  by  the 
court,  adverting  to  the  fact  that  the  security  was  obtained,  through 
the  influence  of  one  standing  in  loco  parentis,  from  the  object  of  his 
protection  and  care :  "This  is  a  transaction  which,  under  ordinary 
circumstances,  this  court  will  not  allow.  *  ♦  ♦  This  court  does 
not  interfere  to  prevent  an  act,  even  of  bounty,  between  parent  and 
child,  but  it  will  take  care  (under  the  circumstances  in  which  the 
parent  and  child  are  placed  before  the  emancipation  of  the  child) 
that  such  child  is  placed  in  such  a  position  as  will  enable  him  to 
form  an  entirely  free  and  unfettered  judgment,  independent  alto- 
gether of  any  sort  of  control."  *' 

Same — Other  Family  Relations 

The  term  "parental  relations"  applies,  not  only  to  the  actual  rela- 
tion of  parent  and  child,  and  of  one  in  loco  parentis  and  child,  but 
extends  to  husband  and  wife,  brother  and  brother  or  sister,  and  to 
all  cases  in  which  one  member  of  a  family,  from  age,  character,  or_ 
circumstances,  exercises  a  substantial  preponderance  of  authority_jiL 
the  family  councils.*^ 

Same — Fiduciary  Relations 

Persons  standing  in  a  fiduciary  relation  occupy  a  relation  of  con- 
fidence, and  are  within  this  equitable  rule.  A  contract  between  a 
trustee  and  his  cestui  que  trust,**  or  between  a  guardian  and  his 

111.  420,  58  N.  B.  480.  But  see  Jenkins  v.  Pye,  12  Pet.  241,  9  L.  Ed.  1070.  See 
"Parent  and  Child,"  Dec.  Dig.  (Key-No.)  §  9;   Cent.  Dig.  §§  7^,  111-135. 

46  Archer  v.  Hudson,  7  Beav.  560.  See  "Parent  and  Child"  Dec.  Dig.  {Key- 
No.)  §  9;    Cent.  Dig.  §§  74,  111-13.5. 

4T  Green  v.  Roworth,  113  N.  Y.  462,  21  N.  E.  165;  Harvey  v.  Mount,  8  Beav. 
439 ;  Graham  v.  Burch,  44  Minu.  33,  46  K  W.  148 ;  Smyley  v.  Reese,  53  Ala.  89, 
25  Am.  Rep.  598 ;  Watldns  v.  Brant,  46  Wis.  419,  1  N.  W.  82 ;  Bowe  v.  Bowe, 
42  Mich.  195,  3  N.  W.  843;  Golding  v.  Gelding,  82  Ky.  51;  Swisshelm's  Ap- 
peal, 56  Pa.  475,  94  Am.  Dec.  107;  Hill  t.  Miller,  50  Kan.  659,  32  Pac.  354; 
Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528;  Brown  v. 
Bnrbank,  64  Cal.  99,  27  Pac.  940;  Greene  v.  Greene,  42  Neb.  634.  60  N.  W. 
937.  47  Am.  St.  Rep.  724;  Woods  v.  Roberts,  185  111.  4S9,  57  N.  B.  426;  Bowen 
r.  Kutzner  167  Fed.  281,  93  C.  C.  A.  33  (brother  and  sister) ;  Ziegler  v.  Sliuler, 
87  S.  C.  1,  68  S.  E.  817.  No  presumption  of  fiduciary  relation  arises  from 
mere  proof  that  the  parties  are  brothers,  but  may  be  shown  by  evidence  that 
confidence  was  actually  reposed  and  abused.  Shevlin  v.  Shevlin,  96  Minn.  398, 
105  N.  W.  257.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;  Cent.  Dig.  §§  Ul, 
1169;   "Wills,"  Dec.  Dig.   (Keg-No.)  §  157;   Cent.  Dig.  §§  383.  SSJf. 

4  8  Spencer's  Appeal,  80  Pa.  317;  Ward  v.  Armstrong,  84  111.  151;  Jones 
V.  Lloyd,  117  111.  .597,  7  N.  E.  119;  Nichols  v.  McCarthy,  53  Conn.  299,  23  Atl. 
93,  55  Am.  Rep.  105;  McCants  v.  Bee,  1  McCord,  Eq.  (S.  C.)  383,  16  Am.  Dea 
010.  Principal  and  agent  Burke  v.  Taylor,  94  Ala.  530,  10  South.  129.  See 
"Guardian  and  Ward,"  Dec.  Dig.  (Keg-No.)  §  69;  Cent.  Dig.  §§  261,  S05-307; 
"Trusts,"  Dec.  Dig.   (Key-No.)  §  283;   Cent.  Dig.  §§  Jf03,  J^Ok. 


§§    145-146)  UNDUE    INFLUENCE  309 

ward/'  is  looked  upon  with  suspicion.  It  is  presumed  that  the 
trustee  or  guardian  who  is  benefited  by  the  promise  of  his  cestui 
que  trust  or  ward  has  used  his  peculiar  position  of  confidence  to  his 
own  advantage,  and,  in  order  that  the  contract  may  stand,  he  must 
show  the  contrary. 

Same — Other  Confidential  Relations 

The  power  which  a  spiritual  .adviser  may  acquire  over  persons 
subject  to  his  influence  is  also  looked  upon  as  raising  the  presump- 
tion of  undue  influence  ;^°  and  to  this  may  be  added  a  number  of 
other  relations,  such  as  attorney  or  solicitor  and  client,''^  and  doctor 
and  patient.^^  The  relations  mentioned  are  not  all.^^  The  courts 
have  not  limited  or  defined  the  relations  which  they  will  regard  as 
raising  this  presum.ption  of  influence.  The  principle,  it  is  said,  ap- 
plies to  every  case  where  "influence  is  acquired  and  abjiSfid,  wliere 
coiTfideivce_isj::£posejd  and-hetrayed.    ^*    Thus,  where  a  young  man 

4  9  McPARLAND  v.  LARKIN.  155  111.  84,  39  N.  E.  609.  Throckmorton  Gas. 
Contracts.  212 ;  Ashton  v.  Thompson,  32  Minn.  25,  18  N.  W.  918 ;  Wickiser  v. 
Cook,  85  111.  68;  Wade  v.  Pulsifer,  54  Vt.  45;  Bowe  v.  Bowe,  42  Mich.  195,  3 
N.  W.  843 ;  Garvin's  Adm'r  v.  Williams,  44  Mo.  465.  100  Am.  Dec.  314 ;  Id.,  50 
Mo.  206.  See  "Guardian  and  Ward."  Dec.  Dig.  (Key-No.)  §  69;  Cent.  Dig.  §§ 
261,  S05-307. 

BO  Huguennin  v.  Baseley,  14  Ves.  273;  Marx  v.  McGlynn,  88  N.  T.  357;  Cor- 
ripan  v.  Pironi,  48  X.  J.  Eq.  607,  23  Atl.  355 ;  Ross  v.  Conway,  92  Gal.  632, 
28  Pac.  785 ;  Finegan  v.  Theisen,  02  Mich.  173,  52  N.  W.  619 ;  Ford  v.  Hen- 
nessy,  70  Mo.  580.  Spirit  medium's  influence  over  believer  in  spiritualism. 
Thompson  v.  Hawks  (C.  G.)  14  Fed.  902;  Connor  v.  Stanley,  72  Cal.  556,  14 
Pac.  306,  1  Am.  St.  Rep.  84.  See  "Contracts:'  Dec.  Dig.  (Key-No.)  §  96;  Cent. 
Dig.  §§  J,Ifl,  1169;    "Wills:'  Dec.  Dig.  (Key-No.)  §  151;    Cent.  Dig.  §§  883,  SSI,. 

51  St.  Leger's  Appeal,  34  Conn.  434,  91  Am.  Dec.  735;  Carter  v.  West,  93 
Ky.  211,  19  S.  W.  592 ;  McGinn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St. 
Rep.  848 ;  Jennings  v.  McConnel,  17  111.  148 ;  Zeigler  v.  Hughes,  55  111.  288 ; 
Ryan  v.  Ashton,  42  Iowa,  365.  See  "Attorney  and  Client:'  Dec.  Dig.  (Key-No.) 
i  123;    Cent.  Dig.  §§  239-2 ',9. 

5  2  Audenreid's  Appeal,  89  Pa.  114,  33  Am.  Rep.  731 ;  Woodbury  v.  Woodbury, 
141  Mass.  329,  5  N.  E.  275,  55  Am.  Rep.  479 ;  Dent  v.  Bennett,  4  Mylne  &  C. 
269;  Blackie  V.  Clark,  15  Beav.  603 ;  Cadwallader  v.  West,  48  Mo.  483;  Wat- 
son V.  Mahan,  20  Ind.  227 ;  Viallet  v.  Consolidated  Ry.  &  Power  Co.,  30  Utah, 
260.  84  Pac.  496,  5  L.  R.  A.  (N.  S.)  613.  See  "Contract.'^,"  Dec.  Dig.  (Key-No.) 
§  96;  Cent.  Dig.  §§  U^,  il69;  "Wills:'  Dec.  Dig.  (Key-No.)  §  157;  Cent.  Dig. 
§§  3SS,  S8-1 

5  3  Dent  v.  Bennett,  4  Mylne  &  C.  269;  Drake's  Appeal,  45  Conn.  9;  Boyd 
T.  De  La  ISIontagiiie,  73  N.  Y.  498,  29  Am.  Rep.  197 ;  Pierce  v.  Pierce,  71  N. 
T.  154,  27  Am.  Rep.  22;  Darlington's  Appeal,  86  Pa.  512,  27  Am.  Rep.  726; 
Rockafellow  v.  Newcorab,  57  111,  186;  Cadwallader  v.  West,  48  Mo.  483;  Cas- 
pari  v.  Church,  82  Mo.  649;  Allcord  v.  Skinner,  36  Ch.  Div.  145;  Hessick  v. 
Hessick,  169  111.  486,  48  N.  E.  712;  Russell  v,  Rus.sell,  60  N.  J.  Eq.  2S2,  47 
Atl.  37.  As  to  master  and  servant,  Doran  v.  IMcConlogue,  150  Pa.  98,  24 
Atl.  357.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;    Cent.  Dig.  §§  //.',i,  1169. 

6*  Sears  v.  Shafer,  6  N.  T.  268;    Fisher  t.  Bishop,  108  N.  Y.  25,  15  N.  E, 


310  REALITY   OP   CONSENT  (Ch.  T 

who  had  just  attained  his  majority  incurred  heavy  liabilities  to  a 
person  by  the  contrivance  of  an  older  man  who  had  acquired  a 
strong  influence  over  him,  and  who  professed  to  assist  him  in  a 
career  of  extravagance  and  dissipation,  it  was  held  that  influence  of 
this  nature  entitled  the  young  man  to  the  protection  of  the  court. 
"The  principle,"  it  was  said,  "applies  to  every  case  where  influence 
is  acquired  and  abused,  where  confidence  is  reposed  and  betrayed. 
The  relations  with  which  the  court  of  chancery  most  ordinarily  deals 
are  those  of  trustee  and  cestui  que  trust,  and  such  like.  It  applies 
especially  to  those  cases,  for  this  reason,  and  for  this  reason  only : 
that  from  those  relations  the  court  presumes  confidence  put  and  in- 
fluence exerted,  whereas,  in  all  other  cases  where  those  relations  do 
not  subsist,  the  confidence  and  the  influence  must  be  proved  ex- 
trinsically.  But,  where  they  are  proved  extrinsically,  the  rules  of 
reason  and  common  sense,  and  the  technical  rules  of  a  court  of 
equity,  are  just  as  applicable  in  the  one  case  as  the  other."  " 

Same — Continuance  of  Presumption 

The  presumption  of  undue  influence  from  the  parental  or  quasi 
parental  relation  does  not  cease  as  soon  as  the  child  becomes  of  age 
and  is  emancipated  in  law.  Hjsjudgment  must  also  be  .einancipa4:- 
ed.  The  confidential  relation  and  consequent  presumption  of  undue 
influence  continues  until  the  child  is  entirely  released  from  any  sort 
of  control ; "'  and  the  same  principle  applies  to  the  relation  of  guard- 
ian and  ward  and  the  other  confidential  relations."^^ 

331,  2  Am.  St.  Eep.  357 ;  Long  v.  Mulford,  17  Ohio  St.  484,  93  Am.  Dec.  QP,S : 
Leighton  v.  Orr,  44  Iowa.  670 ;  Haydock  v.  PTaydock's  Ex'rs,  34  N.  J.  Eq.  570, 
38  Am.  Rep.  385;  McCormick  v.  Malin,  5  Blackf.  (Ind.)  509;  Todd  v.  Grove, 
33  Md.  188;  Cherbonnier  v.  Evitts,  56  Md.  276;  Hansen  v.  Bertbelsen,  1& 
Neb.  433,  27  N.  W.  423;  McClure  v.  Lewis,  72  Mo.  314;  Williams  v.  Collins, 
67  Iowa,'  413,  25  N.  W.  682 ;  Hanna  v.  Wilcox,  53  Iowa,  547,  5  N.  W.  717 ; 
Reed  v.  Peterson,  91  111.  288;  Norris  v.  Tayloe,  49  111.  17,  95  Am.  Dec.  568; 
Courtney  v.  Blackwell,  150  Mo.  245,  51  S.  W.  668.  See  "Contracts,''  Dec. 
Dig.  (Kep-No.)  §  96;   Cent.  Dig.  §§  J,U,  11^9. 

5  5  Smith  V,  Kay,  7  H.  L.  Cas.  750,  779.  See,  also,  Knott  v.  Tidyman,  86 
Wis.  164,  56  N.  W.  632.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;  Cent. 
Dig.  §§  Ul,  1109. 

56  Archer  v.  Hudson,  7  Beav.  560 ;    Asbton  v.  Thompson,  32  Minn.  25,  18 

N.  W.  918;    Noble's  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  60  Am.  Rep. 

175 ;    Miller  v.  Simonds,  72  Mo.  6(39 ;    White  v.  Ross,  160  111.  56,  43  N.  E.  336. 

See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;   Cent.  Dig.  §§  W,  1109;    "Parent 

and  Child,"  Dec.  Dig.  (Key-No.)  %9;   Cent.  Dig.  §§  7 J,,  111-185. 

5  7    McPARLAND  v.  LARKIN,  155  111.  84,  39  N.  E.  609,  Throckmorton  Cas. 

Contracts,  212;    Rhodes  v.  Bates,  L.   R.  1  Ch.  252;    Mitchell  v.  Homfray,  8 

Q;  B.  Div.  587.     See  "Guardian  and  Ward"  Dec.  Dig.  (Key-No.)  §  69;    Cent. 

Dig.  §§  261,  305-207, 


§§    145-146)  UNDUE    INFLUENCE  311 

Same — Rebuttal  of  Presumption 

Where  a  presumption  of  undue  influence  exists  by  reason  of  the 
relations  of  the  parties,  it  has  been  said  that  to  render  the  transac- 
tion valid  it  is  only  necessary  to  show  that  the  other  party  had  com- 
petent and  disinterested  advice,  or  that  he  performed  the  act  or  en- 
tered into  the  transaction  voluntarily,  deliberately,  and  advisedly, 
knowing  its  nature  and  effect,  and  that  his  consent  was  not  obtained 
by  "reason  of  the  power  and  influence  to  which  the  relation  might  be 
supposed  to  give  rise,"  "" 

Mental  Weakness 

Mere  weakness  of  intellect,  not  so  great  as  to  render  the  person 
non  compos  mentis,  will  not  of  itself  affect  the  validity  of  a  con- 
tract.^* If,  however,  the  other  party  has  taken  advantage  of  such 
weakness,  and  by  the  use  of  fraud  and  undue  influence  has  made  an 
unfair  contract,  it  will  be  set  aside.®" 

Personal  Influence  Absent — Advantage  Taken  of  Another's  Necessi- 
ties and  Distress 
The  doctrine  of  undue  influence  has  been  extended  to  a  class  of 
cases  from  which  the  element  of  personal  influence  is  altogether  ab- 
sent. They  all  appear  to  possess  these  common  features,  namely, 
that  the  promisor  incumbers  himself  with  heavy  liabilities  for  the 
sake  of  a  small  gain,  or,  at  any  rate,  an  inadequate  present  gain; 
and  the  promisee  takes  advantage  either  of  the  improvidence  and 
moral  weakness,  or  else  of  the  ignorance  and  unprotected  situation 
of  the  promisor,  or,  as  stated  in  the  black-letter  text,  takes  an  unfair 
advantage  of  the  promisor's  weakness  of  mind,'^  or  of  his  necessities 

BSZeigler  v.  Illinois  Trust  &  Savings  Bank,  245  111.  180,  91  N.  B.  1041,  28 
L.  R.  A.  (N.  S.)  1112,  19  Ann.  Cas.  127.  And  see  Fjone  v.  Fjone,  16  N.  D. 
100,  112  N.  W,  70.  See  "Contracts;'  Dec.  Dig.  {Key-ls!o.)  §  96;  Cent.  Dig.  §§ 
Ul,  ii69. 

B»  Ante,  p.  224. 

60  Norton  v.  Norton,  74  Iowa,  161,  37  N.  W.  129;  Tracey  ▼.  Saeket,  1 
Ohio  St  54,  58,  59  Am.  Dec.  610 ;  Rider  v.  Miller,  86  N.  Y.  507 ;  Morton's  Adm'r 
V.  Morton  (N.  J.  Ch.)  8  Atl.  807;  Oakey  v.  Ritchie,  09  Iowa,  69,  28  N.  W. 
448;  Allore  v.  Jewell,  94  U.  S.  506.  24  L.  Ed.  260;  Griffith  v.  Godey,  113 
U.  S.  89,  5  Sup.  Ct  383,  28  L.  Ed.  934 ;  Fishbume  v.  Ferguson's  Heirs,  84  Va. 
87,  4  S.  E.  575;  Moore  v.  Moore,  50  Cal.  80;  Rippy  v.  Grant,  39  N.  C.  443; 
Churchill  v.  Scott,  65  Mich.  4S5,  32  N.  W.  737;  Zeigler  v.  Shuler,  87  S.  C.  1, 
68  S.  E.  817;  Foote  v.  De  Poy,  126  Iowa,  366,  102  N.  W.  112,  68  L.  R.  A. 
302,  106  Am.  St.  Rep.  365  (mental  weakness  from  age)  ;  INIiller  v.  Sterringer, 
66  W.  Va.  109,  66  S.  E.  228,  25  L.  R.  A.  (N.  S.)  596  (mental  weakness  from 
liquor  furnished  by  other  party).  See  "Contracts"  Dec.  Dig.  (Key-No.)  S 
96;    Cent.  Dig.  §§  Ul,  1169. 

*    «i  Selden  v.  Myers,  20  How.  506,  15  Ij.  Ed.  976.    See  "Contracts,"  Dec.  Dig. 
{Key-No.)  §§  96,  90;   Cent.  Dig.  §§  Ul,  W,  1169. 


312  REALITY   OF   CONSENT  (Ch.  7 

and  distress.*'  The  law  has  attempted  by  statute  in  some  jurisdic- 
tions, as  in  case  of  the  usury  laws,  to  guard  against  advantage  being 
taken  against  persons  in  such  a  situation,  and  courts  of  equity  at 
one  time  adopted  a  rule  that  purchasers  of  any  reversionary  inter- 
est might  always  be  called  upon  to  show  that  they  had  given  full 
value  for  their  bargains,  so  that  they  might  not  take  advantage  of 
a  man's  present  necessities  to  deprive  him  of  his  future  estates  with- 
out reasonable  return. ^^  The  usury  laws  do  not  exist  in  all  juris- 
dictions, and  the  rule  as  to  reversionary  interests  has  been,  to  a 
great  extent,  abrogated  by  statute  in  England,  and  is  recognized  in 
very  few  cases  with  us.  If,Jiowev_£r,.a  man,  even  in  the  absence  of 
usury  laws,  takes  advantage  of  the  present  poverty,  of  an  expectant 
heir  to  extort  from  him  an  exorbitant  and  ruinous  rate  of  interest, 
he  is  liable  to  have  the  bargain  set  aside,  and  to  be  remitted_to  his 
claim  for  the  amount  of  money  he  has  actually  advanced,  with  the 
curr-ent  rate  of  interest  upon  it.®*  "In  ordinary  cases,"  it  is  said, 
"each  party  to  a  bargain  must  take  care  of  his  own  interest,  and  it 
will  not  be  presumed  that  undue  advantage  or  contrivance  has  been 
resorted  to  on  either  side;  but  in  the  case  of  'the  expectant  heir,' 
or  of  persons  under  pressure  without  adequate  protection,  and  in 
the  case  of  dealings  with_uneducated,  ignorant  persons,  the  burdjen 
of  showing  the  fairness  of  the  transaction  is  thrown  on  the  person 
who  seeks  to  obtain  the  benefit  of  the  contract."  "*  The  court  will 
look  to  the  reasonableness  of  the  transaction  under  all  the  circum- 
stances of  the  case;  and  if  it  appears  that  one  has  taken  advantage 
of  the  unprotected  condition  of  the  other  to  drive  a  hard  bargain, 

62  Moore  v.  Moore,  81  Cal.  195,  22  Pac.  589,  874;  Wooley  v.  Drew,  49  Mich. 
•290,  13  N.  W.  594;  McCants  v.  Bee,  1  McCord,  Eq.  (S.  C.)  383,  16  Am.  Dec. 
GIO.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §§  96,  99;  Cent.  Dig.  §§  Ui,  US, 
1169. 

6  3  Chesterfield  v,  Jansen,  2  Ves.  125;  1  White  &  T.  Lead.  Cas.  Eq.  428; 
.Tenldns  v.  Tve,  12  Pet.  241,  9  L.  Ed.  1070.  See  "Contracts,"  Dec.  Dig.  (Eeij- 
No.)  §  96;  Cent.  Dig.  §§  Ui,  1169;  "Cancellation  of  Instruments,"  Dec.  Dig. 
{Key-No.)  §§  1,5,  ^7;   Cent.  Dig.  §§  100-lOS. 

64Aylesford  v.  Morris,  8  Ch.  484;  Anson,  Cont.  (4th  Ed.)  169.  And  see 
cases  cited  in  note  66,  infra.  The  mere  fact,  however,  that  exorbitant  inter- 
est is  charged  does  not  show  that  the  contract  is  unconscionable.  Whittier 
V.  Collins,  15  R.  I.  44,  23  Atl.  39.  Where  there  is  no  actual  fraud,  and  no 
fiduciary  relation  between  the  purchaser  of  a  reversionary  Interest  and  his 
vendor,  mere  inadequacy  of  consideration  is  not  sufficient  to  avoid  the  sale 
unless  it  is  so  great  as  to  shock  the  moral  sense.  Mayo's  Ex'r  v.  Carrington's 
Ex'r,  19  Grat.  (Va.)  74;  Cribbins  v.  Markwood,  13  Grat  (Va.)  495,  67  Am. 
Dec.  775.  And  see  Parmelee  v.  Cameron,  41  N.  Y.  392;  Davidson  v.  Little, 
22  Pa.  245,  60  Am.  Dec.  81.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  96;  Cent. 
Dig.  §§  Ui,  116S;   "Reversions,"  Dec.  Dig.  (Key-No.)  §  7;    Cent.  Dig.  §  7. 

6  5  O'Rorke  v.  Bolingbroke,  3  App.  Cas.  823.  See  "Contracts;'  Deo.  Dig, 
(Key-No.)  U  96,  99;   Cent.  Dig.  §§  Ul,  US,  1169. 


§§    145-146)  UNDUE    INFLUENCE  <J13 

whether  such  condition  arose  from  mental  or  moral  weakness  or  ig- 
norance, or  from  present  necessity  and  distress,  the  transaction  will 
not  be  allowed  to  stand. °* 

Another  case  in  which  this  rule  has  been  applied  is  in  the  case  of 
a  sale  of  the  equity  of  redemption  by  a  mortgagor  to  the  mortgagee. 
The  sale  may  be  avoided  by  the  mortgagor  if  any  undue  advantage 
was  taken  of  his  necessities.®^ 

Effect 

The  rules  respecting  the  right  to  rescind  contracts  entered  into 
under  undue  influence  follow,  so  far  as  equity  is  concerned,  the  rules 
which  apply  to  fraud,®*  but  with  one  noticeable,  qualification.  In 
the  case  of  fraud,  so  soon  as  the  fraud  is  discovered,  the  parties  are 
placed  on  equal  terms,  and  an  affirmation  of  the  contract  binds  the 
paTty  who  was  originally  defrauded  ;x^  but  in  the  case  of  undue  in- 
fluence ft  is  hot  a  particular  statement,  but  a  combination  of  circum- 
stances, which  constitutes  the  vitiating  element  in  the  contract,  and 
unless  it  is  clear  that  the  will  of  the  injured  party  is  relieved  from 
the  dominant  influence  under  which  it  has  acted,  or  that  the  imper- 
fect knowledge  with  which  he  entered  into  the  contract  is  supple^ 
mented  by  the  fullest  assistance  and  information,  an  affirmation 
wifrnot  Fe  allowed  to  bind  him.®'  And  where  it  appears  that  the 
undue  influence  existed  up  to  the  death  of  the  party,  the  contract 
may  be  avoided  by  his  heirs.''*' 

As  in  the  case  of  duress,  the  undue  influence  must  have  been  ex- 
ercised by  or  with  the  cognizance  of  the  other  party/^ 

«8  Benyon  v.  Cook,  10  Ch.  389;  Hough's  Adm'rs  v.  Hunt,  2  Ohio,  495, 
15  Am.  Dec.  569 ;  Boynton  v.  Hubbard,  7  Mass.  112 ;  Parsons  v.  Ely,  45  111. 
232:  Butler  v.  Duncan,  47  Mich.  94,  30  K  W.  123,  41  Am.  Rep.  711;  Kelley 
V.  Caplice,  28  Kan.  474,  S3  Am.  Kep.  179;  Jenkins  v.  Pye,  12  Pet.  241,  9  L. 
Ed.  1070;  Bacon  v.  Bonham,  33  N.  J.  Eq.  614,  617;  Mastin  v.  Marlow,  65  N. 
C.  695.    See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  96;   Cent.  Dig.  §§  1,1,1,  1163. 

6  7  Peugh  V.  Davis,  96  U.  S.  337,  24  L.  Ed.  775;  Oliver  v.  Cunningham  (C.  C.) 
7  Fed.  689;  Dorrill  v.  Eaton,  35  Mich.  302;  Jones,  Mtg.  (5th  Ed.)  §  711. 
Bee  "Mortgages,"  Dec.  Dig.  (Key-No.)  §  291,;   Cent.  Dig.  §§  806-81-',. 

«8  Burt  V.  Quisfenberry,  132  111.  385,  24  N.  E.  622;  City  Nat.  Bank  of  Dayton 
V.  Kusworm,  91  Wis.  166,  64  N.  W.  843 ;  ante,  p.  292.  See  "Contracts,"  Dec. 
Dig.   (Key-No.)  §§  97,  98;   Cent.  Dig.  §§  U2-U~- 

6  9  Anson,  Cont.  (4th  Ed.)  169  ;  Moxon  v.  Payne,  8  Ch.  881.  See  "Contracts," 
Dig.   (Key-No.)  §§  97,  98;    Cent.  Dig.  §§  J,J,2-J,J,1. 

7  0  Foote  V.  De  Poy,  126  Iowa,  366,  102  N.  W.  112,  68  L.  R.  A.  302,  106  Am. 
St.  Rep.  365.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  96-98;  Cent.  Dig.  §§ 
J,l,l-l',8. 

7  1  Dent  V.  Ix)ng,  90  Ala.  172,  7  South.  640.  Contra,  where  the  other  party 
has  not  paid  a  valuable  consideration,  Graham  v.  Burch,  44  Minn.  33,  46  N. 
W.  148.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  f  96;    Cent.  Dig.  §$  Ul,  1169. 


3U 


LEGALITY   OF  OBJECT 


(Ch.8 


CHAPTER  VIII 

LEGALITY  OF  OBJECT 

147.  In  General. 

148.  Classification  of  Unlawful  Agreements. 

f 

149.  Agreements  in  Violation  of  Positive  Law. 

150.  Breach  of  Rules  of  Common  Law. 

151.  Breach  of  Statute — Constitutional  Law. 

152.  Prohibition  by  Statute. 

153.  Particular  Agreements  in  Breach  of  Statute. 
154-155.  Agreements  Contrary  to  Public  Policy. 

156.  Agreements  Tending  to  Injure  the  Public  Service. 

157.  Nonofficial  Corruption. 

158-160.  Perversion  or  Obstruction  of  Justice. 

161.  Encouragement  of  Litigation — Champerty  and  Maintenance. 

162.  Agreements  of  Immoral  Tendency. 

163.  Agreements  Tending  to  Fraud  and  Breach  of  Trust. 

164.  Agreements  in  Derogation  of  the  Marriage  Relation. 

165.  Agreements  In  Derogation  of  Parental  Relation. 
166-169.  Agreements  In  Restraint  of  Trade. 

170-172.  Unlawful  Combinations — Monopolies,  Trusts,  etc. 

173-174.  Exemption  from  Liability  for  Negligence. 

175.  Effect  of  Illegality — Agreements  Partly  IllegaL 
176-177.  Object  Unlawful  but  Intention  Innocent 

178-180.  Object  Innocent  but  Intention  Unlawful. 

18L  Promises  to  Pay  Money  Due  on  Illegal  Transactions. 

182-185.  Relief  of  Party  to  Unlawful  Agreement 

186.  Conflict  of  Laws — In  Space. 

187.  In  Time. 


IN  GENERAL 

147.  An  agreement  is  not  enforceable  at  law,  and  therefore  does 
not  result  in  a  contract,  if  its  object  is  illegal. 


'  We  come  now  to  deal  with  the  only  remaining  element  in  the 
formation  of  a  valid  contract — the  legality  of  the  matter  or  object  of 
the  agreement.  To  result  in  a  contract,  an  agreement  must  create 
an  obligation ;  and  it  does  not  create  an  obligation  if  it  is  such  that 
the  courts  cannot  enforce  it.  An  agreement,  therefore,  which  is  il- 
legal, or  unlawful,  is  in  fact  no  contract  at  all,  though  it  is  often 
spoken  of  as  an  illegal  contract. 

As  a  rule  the  law  does  not  interfere  with  the  freedom  of  persons 
to  enter  into  contracts,  but  some  limitations  are  imposed.  Certain 
objects  are  forbidden,  and  though  all  the  other  elements  necessary 
to  the  formation  of  a  valid  contract  may  be  present,  yet  if  one  of 


§    149)  AGREEMENTS    IN    VIOLATION    OF    POSITIVE    LAW  315 

these  forbidden  objects  is  contemplated  by  the  parties,  the  courts 
will  not  enforce  their  agreement.  The  object  makes  the  agreement 
unlawful.^ 


CLASSIFICATION  OF  UNLAWFUL  AGREEMENTS 

148.  For  convenience  in  treatment,  unlawful  agreements  may  be 

classified,  according  to  their  matter  or  object,  as 

(a)  Agreements  in  violation  of  positive  law;  and 

(b)  Agreements  contrary  to  public  policy. 

The  distinction  here  made  between  agreements  in  violation  oi 
positive  law  and  agreements  contrary  to  public  policy  is  in  the  rea- 
sons which  determine  the  law  to  hold  the  agreement  void,  and  not  in 
the  nature  or  operation  of  the  law  itself.  The  nullity  of  the  agree- 
ment itself  is  in  every  case  a  matter  of  positive  law ;  ^  but  in  one 
class  of  cases  the  acts  contemplated  by  the  agreement  are  prohibited 
by  the  common  law  or  by  statute,  while  in  the  other  the  prohibition 
rests  more  particularly  on  public  policy,  or,  as  it  is  sometimes  call- 
ed, the  "policy  of  the  law."  It  is  not  always  easy  to  distinguish 
between  the  two  classes,  for  frequent  decisions  upon  certain  mat- 
ters of  public  policy  have  established  such  definite  rules  regarding 
them  that  they  are  in  effect  rules  of  the  common  law.  Too  much 
importance,  therefore,  must  not  be  attached  to  any  classification  of 
the  subject. 

AGREEMENTS  IN  VIOLATION  OF  POSITIVE  LAW 

149.  Any  agreement  which  involves  the  doing  of  an  act  which  is 

positively  forbidden  by  law,  or,  what  amounts  to  the  same 
thing,  the  omission  to  do  an  act  which  is  positively  enjoin- 
ed by  law,  is  illegal  and  void.  Acts  may  be  so  prohibited 
or  enjoined 

(a)  By  the  rules  of  the  common  law ;  or 

(b)  By  statute. 

There  are  many  acts  which  the  law  positively  forbids  or  enjoins, 
and  to  the  doing  or  omission  of  which  some  penalty  is  attached. 

1  EdRar  Lumber  Co.  v.  Cornie  Stave  Co.,  05  Ark.  449,  130  S.  W.  452;  Piper 
V.  Boston  &  M.  R.  R.,  75  N.  H.  435,  75  Atl.  1041 ;  Crigler  v.  Shepler,  101  Pac. 
619,  23  L.  R.  A.  (N.  S.)  500,  79  Kan.  834.  See  "Contracts;'  Dec.  Dig.  (Key- 
No.)  §  103;  Cent.  Dicj.  §§  J,68-J,1G. 

2  Pol.  ConL  (3d  Ed.)  251. 


316  LEGALITY   OF   OBJECT  (Cll.  8- 

Whether  the  prohibition  or  injunction  is  by  the  common  law  or  by 
statute  is  altogether  immaterial.  So  it  does  not  matter  whether  the 
act  to  be  performed  is  malum  in  se  or  malum  prohibitum.^  The  act 
or  omission  prohibited  may  be  some  grievous  crime,  such  as  mur- 
der; or  it  may  be  an  act  or  omission  prohibited  merely  as  a  police 
regulation,  as  in  the  case  of  statutes  regulating  the  conduct  of  a  par- 
ticular trade  or  business,  with  only  a  small  fine  as  the  penalty;  or 
again  it  may  be  only  a  civil  wrong.  All  of  these  cases  stand  on  the 
same  footing.  If  the  subject-matter  or  object  of  an  agreement  is 
such  that  its  performance  would  consist  in  an  act  or  omission  so  for- 
bidden, or  be,  so  connected  therewith  as  to  be  in  substance  part  of 
the  same  transaction,  the  courts  will  not  enforce  it. 


SAME— BREACH  OF  RULES  OF  COMMON  LAW 

150.  The  agreements  which  are  illegal  because  they  are  in  breach 
of  rules  of  the  common  law  are : 

(a)  Agreements  involving  the  commission  of  crime;  and 

(b)  Agreements  involving  the  commission  of  a  civil  wrong. 

This  classification,  like  that  in  the  preceding  section,  is,  from  the 
nature  of  the  subject,  only  approximate,  and  for  convenience  in 
treatment.  Many  acts  are  prohibited  by  statute  which  were  for- 
merly prohibited  by  the  common  law,  and  many  acts  which  are  pro- 
hibited by  the  common  law  in  one  state  are  prohibited  by  statute  in 
another,  and  in  some  states  there  are  no  common-law  crimes  at  all. 
For  this  reason,  in  treating  of  agreements  in  breach  of  rules  of  the 
common  law  we  must  include  agreements  in  breach  of  statutes 
which  are  merely  declaratory  of  the  common  law. 

Agreements  Invohnng  the  Cotnmission  of  Crime 

The  simplest  instance  of  an  agreement  contrary  to  positive  law  is 
an  agreement  to  commit  a  crime  or  indictable  offense.  Every  agree- 
ment to  commit  a  crime  or  indictable  offense,  either  as  the  final  ob- 
ject or  as  a  means  to  an  object  which,  except  for  such  means,  would 
be  lawful,  is  illegal  and  void.  "If  one  bind  himself  in  an  obligation 
to  kill  a  man,  burn  a  house,  maintain  a  suit,  or  the  like,  it  is  void."  * 
An  agreement,  therefore,  to  write,  print,  or  publish  a  libelous  book 

«  Holland  v.  Sheehan,  108  Minn.  3G2,  122  N.  W.  1,  23  L.  R.  A.  (N.  S.)  filO, 
17  Ann.  Cas.  687.  See  "Contracts;'  Dec.  Dig.  (Ecu-Xo.)  §  103;  Cent.  Dig. 
§§  Jt68-J,16. 

*  Shep.  Touch.  370. 


§    150)  AGREEMENTS   IN    VIOLATION  X)T  POSITIVE   LAW  317 

or  article,"^  or  an  obscene  book,  article,  or  picture  '  is  void.  And  so 
it  is  with  an  agreement  to  commit  an  assault/  Not  only  are  such 
agreements  illegal  and  void,  but  the  agreement  itself  is  a  crime 
known  in  the  criminal  law  as  a  "conspiracy."  The  crime  of  con- 
spiracy is  also  committed  in  some  cases  where  it  is  agreed  to  com- 
mit some  civil  wrong;  but  the  invalidity  of  such  an  agreement  does 
not  need  to  rest  on  its  criminal  character. 

Agreement  to  Commit  Civil  Wrong 

An  agreement  will  generally  be  illegal  if  it  contemplates  a  civil 
wrong  to  a  third  person,  though  the  wrong  may  not  be  an  indictable 
offense,  and  though  the  agreement  may  not  amount  to  the  crime  of 
conspiracy.  An  agreement  to  divide  the  profits  of  a  fraudulent 
scheme,  or  to  carry  out  some  object  in  itself  lawful,  by  means  of  a 
trespass,  breach  of  contract,  or  breach  of  trust,  is  unlawful  and  void. 
The  acts  contemplated,  though  not  necessarily  criminal,  are  con- 
trary to  positive  law.^ 

Same — Frauds  on  Creditors 

Among  the  agreements  void  because  they  involve  a  civil  wrong 
are  agreements  in  fraud  of  creditors.  Thus,  in  case  of  compositions 
with  creditors,  if  in  order  to  procure  the  consent  of  some  particular 
creditor,  or  for  any  other  reason,  the  debtor  secretly  promises  him 
some  advantage  over  the  others,  the  agreement  is  void.  In  a  com- 
position with  creditors,  "each  creditor  consents  to  lose  part  of  his 

»  Post,  p.  81S. 

e  Poplett  V.  Stockdale,  1  Ryan  &  M.  337;  Gale  v.  Leckle,  2  Starkle,  107.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)  §  103;  Cent.  Dig.  §§  458-7/76. 

7  Allen  V.  Rescous.  2  Lev.  174,  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  103; 
Cent.  Dig.  §§  4GS-J,76. 

8  Scott  V.  Bro\vn  [1892]  2  Q.  B.  724;  Begbie  v.  Sewage  Co.,  L.  R.  10  Q. 
B.  491 ;  Clement's  Appeal,  52  Conn.  464 ;  Allen  v.  Rescous,  2  Lev.  174 ;  Hatch 
T.  Mann,  15  Wend.  (N.  Y.)  44;  Davis  v.  Arledge,  3  Hill  (S.  C.)  170,  30  Am. 
Dec.  360;  McCall's  Adm'r  v.  Capehart,  20  Ala.  521 ;  Gleason  v.  Railroad  Co. 
(Iowa)  43  X.  W.  517;  Woodstock  Iron  Co.  v.  Extension  Co.,  129  U.  S.  643, 
9  Sup.  Ct.  402,  32  L.  Ed.  819;  Huckins  v.  Hunt,  138  Mass.  306;  Gray  v.  Mc- 
Reynolds,  65  Iowa,  461,  21  N.  W.  777,  54  Am.  Rep.  16;  Bloss  v.  Bloomer,  23 
Barb.  (N.  Y.)  604;  Thomas  v.  Caulkett,  57  Mich.  392,  24  N.  W.  154,  58  Am. 
Rep.  369 ;  Smith  v.  Humphreys,  88  Me.  345,  34  Atl.  166 ;  post,  p.  360,  note  78. 
Where  A.  pays  B.  for  goods  for  C,  intending  that  C.  shall  not  have  to  pay 
anything,  and  B.  and  C.  secretly  agree  for  a  further  payment  by  C,  the  agree- 
ment is  void  as  a  fraud  on  A.  Jackson  v.  Duchaire,  3  Term  R.  551.  Perpe- 
tration of  fraud  on  the  public.  Materne  v.  Horwitz,  101  N.  Y.  409,  5  N.  E. 
331;  Jerome  v.  P.igelow,  6t;  111.  4.12,  16  Am.  Kep.  597.  Contract  for  use  of 
name  of  musical  director  for  band  with  which  he  is  not  connected.  Blakely 
V.  Sousa,  197  Pa.  335,  47  Atl.  280.  See.  also,  Messer  v.  The  Fadettes,  168 
Mass.  140,  46  N.  E.  407,  37  L.  R.  A.  721,  60  Am.  St.  Rep.  371.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  109;  Cent.  Dig.  §§  J,6D,  J,S5. 


318  LEGALITY   OF  OBJECT  (Ch.  8 

debt  in  consideration  that  the  others  do  the  same,  and  each  creditor 
may  be  considered  to  stipulate  with  the  others  for  a  release  from 
them  to  the  debtor  in  consideration  of  the  release  by  him.  Where 
any  creditor,  in  fraud  of  the  agreement  to  accept  the  composition, 
stipulates  for  a  preference  to  himself,  his  stipulation  is  altogether 
void ;  not  only  can  he  take  no  advantage  from  it,  but  he  is  also  to 
lose  the  benefit  of  the  composition."  '  A  creditor  who  has  not  par- 
ticipated in  the  fraud  may  repudiate  the  composition  and  recover 
on  the  original  claim.^' 

Same — Fraud  in  Connection  with  Sales  at  Auction 

Where  property  is  put  up  for  sale  at  public  auction,  any  agree- 
ment between  the  auctioneer  or  person  having  control  of  the  sale 
and  third  persons  by  which  fictitious  bids  are  to  be  made,  so  as  to 
raise  the  price,  is  a  fraud  on  the  purchaser,^^  and  no  rights  can 
be  based  upon  it.  A  person,  for  instance,  engaged  to  make  ficti- 
tious bids,  could  not  recover  compensation  promised  him.  We 
are  here  speaking  of  illegal  agreements  only,  and  therefore  have 
nothing  to  do  with  the  rights  of  the  purchaser  at  an  auction  sale. 

»  Mullalieu  v.  Hodgson,  16  Q.  B.  689;  Frost  v.  Gage,  3  Allen  (Mass.)  560 
Partridge  v.  Messer,  14  Gray  (Mass.)  180;  Ramsdell  v.  Edgarton,  8  Mete 
(Mass.)  227,  41  Am.  Dec.  503;  Clarke  v.  Wlilte,  12  Pet.  178,  9  L.  Ed.  1046 
Kullman  v.  Greenebaum,  92  Cal.  403,  28  Pac.  674,  27  Am.  SL  Rep.  150 
Cobleigh  v.  Pierce,  32  Vt.  788;  O'Shea  v.  Oil  Co.,  42  Mo.  397,  97  Am.  Dec.  332 
Way  V.  Langley,  15  Oliio  St.  392;  Frieberg  v.  Treitschke,  36  Neb.  880,  55  N. 
W.  273;  Hefter  v.  Cahn,  73  111.  296;  Hucldns  v.  Hunt,  138  Mass.  366;  Brown 
V.  Neally,  161  Mass.  1,  36  N.  E.  464;  Powers  Dry  Goods  Co.  v.  Harlin,  68 
Minn.  193,  71  N.  W.  16,  64  Am.  St.  Rep.  460 ;  Merritt  v.  Bucknam,  90  Me.  146, 
37  Atl.  885.  It  has  been  held,  however,  in  New  York,  that  the  secret  agree- 
ment only  is  void,  and  that  the  prefen-ed  creditor  may  still  have  the  benefit 
of  the  composition  agreement.  Hanover  Nat.  Bank  v.  Blake,  142  N.  Y.  406, 
37  N.  E.  519,  27  L.  R.  A.  33,  40  Am.  St.  Rep.  607.  See,  also.  White  v.  Kuntz, 
107  N.  Y.  518,  14  N.  E.  423,  1  Am.  St.  Rep.  886 ;  Cheveront  v.  Textor,  53  Md. 
295.  A  secret  agreement  by  a  creditor  to  withdraw  his  opposition  to  a  bank- 
rupt's discharge,  or  to  a  composition,  is  void;  and  it  does  not  matter  whether 
it  was  made  with  the  debtor  or  vrlth  a  stranger,  Higgins  v.  Pitt,  4  Ex.  312; 
Kullman  v.  Greenebaum,  supra ;  nor  whether  the  consideration  for  such  with- 
drawal is  to  come  out  of  the  debtor's  assets  or  not,  Hall  v.  Dyson,  17  Q.  B. 
7S5 ;  Kullman  v.  Greenebaum,  supra ;  and  this  is  true  though  it  be  part  of  the 
agreement  not  to  prove  agaiust  the  estate  at  all,  McKewan  v.  Sanderson,  20 
Eq.  65.     See  "Contracts,"  Dec.  Dig.   (Eey-'No.)   §  113;  Cent.  Z>/,(7.  §§  52^-523. 

loZell  Guano  Co.  v.  Emry,  113  N.  C.  85,  18  S.  E.  89;  Kullman  v.  Greene- 
baum, 92  Cal.  403,  28  Pac.  674,  27  Am.  St  Rep.  150;  Powers  Dry  Goods 
Co.  v.  Harlin,  68  Minn.  193,  71  N.  W.  16,  64  Am.  St.  Rep.  400.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  113;  Cent.  Dig.  §§  521-523. 

11  Smith  T.  Greenlee,  13  N.  C.  126,  18  Am.  Dec.  564;  Moncrieff  v.  Golds- 
borough,  4  Har.  &  McH.  (Md.)  281,  1  Am.  Dec.  407;  Curtis  v.  Aspinwall,  114 
Mass.  187,  19  Am.  Rep.  332;  Peck  v.  List,  23  W.  Va.  338,  48  Am.  Rep.  398; 


§    150)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE    LAW  319 

His  contract  is  not  illegal.  He  can  avoid  it,^^  but  this  is  because 
of  the  fraud,  not  because  of  any  illegality.  The  illegality  is  in  the 
agreement  to  commit  the  fraud.  The  sale  is  not  illegal,  but  merely 
voidable  at  the  purchaser's  option. 

In  like  manner  agreements  between  persons  for  the  purpose 
of  deterring  bidders  and  preventing  competition  at  an  auction  sale 
are  illegal  as  being  a  fraud  on  the  owner,  and  the  parties  to  such  an 
agreement  can  claim  no  rights  under  it.^*  This  rule,  however, 
does  not  prevent  parties  from  entering  into  a  bona  fide  arrange- 
ment to  purchase  property  at  auction  on  their  joint  account,  or 
for  other  proper  purposes.^* 

Same — Publication  of  Libel  ' 

Since  it  is  a  civil  wrong  to  publish  a  libelous  book  or  article, 
even  when  it  does  not  constitute  a  crime,  an  agreement  contem- 
plating such  a  publication  is  illegal.  No  action  will  lie,  there- 
fore, to  recover  compensation  for  printing  or  publishing  a  libelous 
book,  or  for  breach  of  a  contract  to  print  or  publish  it,  or  on  an 
agreement  to  indemnify  against  liability  for  publishing  it.^"*     In 

Pennock's  Appeal,  14  Pa.  446,  53  Am.  Dec.  561 ;  Staines  v.  Shore,  16  Pa.  200, 
55  Am.  Dec.  492.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  120;  Cent.  Dig.  §  65J,. 

12  Otherwise  if  the  bidder,  though  employed  by  one  interested  in  the  sale, 
can  be  compelled  by  the  auctioneer  to  take  the  property.  McMillan  v.  Har- 
ris, 110  Ga.  72,  35  S.  E.  334,  48  L.  R.  A.  345,  78  Am.  St.  Rep.  93.  See  "Con- 
tracts," Dec.  Dig.   (Key-No.)  ^  120; 'Cent.  Dig.  §  6-5 Jf. 

isGibbs  V.  Smith,  115  Mass.  592;  Ray  v.  Mackin,  100  111.  246;  Doolin  v. 
Ward,  6  Johns.  (N.  Y.)  194;  Atcheson  v.  Mallon,  43  N.  Y.  147,  3  Am.  Rep. 
678;  Barton  v.  Benson,  126  Pa.  431,  17  Atl.  642,  12  Am.  St.  Rep.  883;  Gardiner 
V.  Morse,  25  Me.  140;  Goldman  v.  Oppenheim,  118  Ind.  95,  20  N.  E.  635; 
Wooten  V.  Hinkle,  20  Mo.  290 ;  Atlas  Nat.  Bank  v.  Holm,  71  Fed.  489,  19  C. 
G.  A.  94 ;  De  Baun  v.  Brand,  60  N.  J.  Law,  283,  37  Atl.  726 ;  Hallam  v.  Huff- 
man, 5  Kan.  App.  303,  48  Pac.  602;  McClelland  v.  Bank,  60  Neb.  90,  82  N. 
W.  319.  A  contract  made  by  a  purchaser  at  a  judicial  sale,  before  confirma- 
tion, to  sell  his  bargain  to  another  at  an  advanced  price,  is  illegal.  Camp 
V.  Bruce,  96  Va.  521,  31  S.  E.  901,  43  L.  R.  A.  146,  70  Am.  St.  Rep.  873.  See 
''Contracts,"  Dec.  Dig.  (Key-No.)  §  119;  Cent.  Dig.  §§  65J,-658. 

14  Gibbs  V.  Smith,  115  Mass.  592;  Smith  v.  Ulman,  58  Md.  183,  42  Am.  Rep. 
329;  Phippen  v.  Stickney,  3  Mete.  (Mass.)  388;  Garrett  v.  Moss,  20  111.  549; 
Marie  v.  Garrison,  83  N.  Y.  14;  Smull  v.  Jones,  1  Watts  &  S.  (Pa.)  128;  Id., 
6  Watts  &  S.  (Pa.)  122;  Jenkins  v.  Frink,  30  Cal.  586,  89  Am.  Dec.  134; 
Kearney  v.  Taylor,  15  How.  494,  14  L.  Ed.  787;  Wicker  v.  Hoppock,  6  Wall. 
94,  18  L.  Ed.  752;  Barnes  v.  Morrison,  97  Va.  372,  34  S.  E.  93;  Henderson 
V.  Henrie,  61  W.  Va.  183,  56  S.  E.  3G9,  11  Ann.  Cas.  741;  Fidelity  Ins.  & 
Safe-Deposit  Co.  v.  Railway  Co.  (C.  C.)  98  Fed.  475  (agreement  by  bond- 
holders to  purchase  on  foreclosure).  A  contract  violating  the  state  constitu- 
tion is  void.  San  Antonio  Irr.  Co.  v.  Deutschmanu,  102  Tex.  201,  105  S.  W. 
4S6,  114  S.  W.  1174.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  119;  Cent.  Dig. 
i%  65^-658. 

"  Shackell  v.  Rosier,  2  Bing.  N.  C.  634 ;  ATKINS  v.  JOHNSON,  43  Vt  78, 


320  LEGALITY   OF   OBJECT  (Ch.  8 

order  to  render  such  a  contract  illegal,  "it  should  appear  that  there 
was  an  intention  on  the  part  of  the  author  and  publisher  to  write 
and  publish  libelous  matter;  or  that  the  author  proposed,  with 
the  knowledge  and  acquiescence  of  the  publisher,  to  write  libelous 
matter;  or  that  the  contract  on  its  face  provided  for  or  promoted 
an  illegal  act."  ^' 

Same — Illegality  Distinguished  from  Fraud 

Fraud  is  a  civil  wrong,  and  an  agreement  to  commit  a  fraud 
is  an  agreement  to  do  an  illegal  act;  but  fraud  as  a  civil  wrong 
must  be  kept  apart  from  fraud  as  a  vitiating  element  in  contract. 
Fraud  may  vitiate  a  contract  because  it  prevents  the  consent  of 
the  other  from  being  genuine;  and  in  such  case  the  contract  can 
be  avoided  by  the  party  defrauded,  because  his  consent  was  unreal. 


SAME— AGREEMENTS  IN  BREACH  OF  STATUTE— CON- 
STITUTIONAL LAW 

151.  The  legislature,  in  the  exercise  of  its  police  power,  may  reg- 
ulate or  prohibit  the  making  of  contracts. 

t 

The  United  States,  or  a  state,  in  the  exercise  of  its  police  power, 
may  regulate  or  prohibit  the  making  of  contracts  where,  in  the 
judgment  of  the  legislature,  the  public  good  requires  the  restric- 
tion, and  ordinarily  the  courts  will  not  review  its  judgment  as 
to  the  propriety  of  the  law.  There  is,  however,  some  limitation 
to  the  police  power.  The  federal  constitution  protects  the  vested 
rights  of  the  people,  and  prohibits  congress  and  the  state  legis- 
latures from  passing  any  law  which  shall  deprive  a  citizen  of  his 
liberty  or  property  without  due  process  of  law.  The  courts  are 
bound  to  enforce  the  constitution  even  as  against  the  legislatures ; 
and  if  the  legislature,  assuming  to  act  under  the  police  power  of 
the  state,  should  pass  a  statute  depriving  a  person  of  the  right 
to  make  contracts,  where  the  public  good  clearly  does  not  require 
such  interference,  the  statute  would  be  unconstitutional  and  void.^'^ 

5  Am.  Rep.  260,  Throckmorton  Cas.  Contracts,  219 ;  Arnold  v.  Clifford,  2  Sumn. 
238,  Fed.  Cas.  No.  555 ;  Ives  v.  Jones,  25  N.  C.  538,  40  Am.  Dec.  421 ;  Clay  v. 
Yates,  1  Hurl.  &  N.  73.  See  "Contracts;'  Dec.  Dig.  {Key-^No.)  §  lOS;  Cent.  Dig. 
{  4n. 

i«  Jewett  Pub.  Co.  v.  Butler,  159  Mass.  517,  34  N.  E.  1087.  Bee  "Contracts," 
Dec.  Dig.  {Key-'No.)  §  103;  Cent.  Dig.  §  47^. 

IT  Allgeyer  v.  Louisiana,  1G5  U.  S.  578,  17  Sup.  Ct.  427,  41  L.  Ed.  832;  Hol- 
den  V.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383,  42  L.  Ed.  780;  People  v.  Coler, 
166  N.  Y.  1,  59  N.  E.  716,  52  L.  R.  A.  814,  82  Am.  St.  Rep.  605;  People  v. 
Gillson,  109  N.  Y,  389,  17  N.  E.  343,  4  Am.  St  Rep.  465 ;  In  re  Jacobs.  08  N. 


g    152)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE    LAW  321 

A  discussion  of  the  police  power  and  of  its  limitations,  however, 
in  its  bearings  upon  the  power  of  the  legislature  in  this  regard, 
is  beyond  the  scope  of  this  book. 


SAME— PROHIBITION  3Y   STATUTE 

152.  In  determining  whether  a  contract,  or  an  act  or  omission 
involved  in  the  performance  of  a  contract,  is  prohibited 
by  statute,  the  intention  of  a  legislature  must  be  ascer- 
tained, and  must  govern;  and  in  ascertaining  the  inten- 
tion the  court  will  look  to  the  language  and  subject-mat- 
ter of  the  statute,  and  the  evil  which  it  seeks  to  prevent. 
Subject  to  this  fundamental  rule,  the  following  rules  of 
construction,  which  are  frequently  applied,  may  be  stated : 

(a)  Where  the  statute  imposes  a  penalty  for  an  act  or  omission, 

this  is  prima  facie  evidence  of  intention  to  prohibit. 

(b)  If  the  object  of  the  penalty  is  protection  of  the  public,  it 

amounts  to  a  prohibition;    but  if  the  object  is  solely  for 
revenue  purposes,  the  act  or  omission  is  not  prohibited. 

Where  it  is  contended  that  an  agreement  is  illegal  as  being  in 
violation  of  a  statute,  the  question  is  whether  the  acts  contem- 
plated are  prohibited  by  the  statute ;  and  the  answer  to  this  ques- 
tion depends  upon  the  construction  of  the  statute.  In  all  cases 
the  intention  of  the  legislature  must  govern.^*  If  a  statute  was 
intended  to  prohibit  a  particular  agreement,  or  the  acts  involved 
in  its  performance,  then  that  agreement  is  clearly  illegal. 

The  law  does  not  make  any  distinction  between  acts  which 
are  mala  in  se,  and  which  for  this  reason  are  prohibited  by  stat- 
ute, and  acts  which  are  mala  prohibita,  or  wrong  merely  because 
they  are  prohibited  by  statute.  If  the  statute  prohibits  an  act, 
an  agreement  involving  its  commission, is  illegal,  without  regard 

T.  98,  50  Am.  Rep.  636;  People  v.  Marx,  99  N.  Y.  377,  2  N.  E.  29,  52  Am. 
Rep.  34;  State  v.  Scougal,  3  S.  D.  55,  51  N.  W.  858,  15  L.  R.  A.  477,  44  Am. 
St.  Rep.  756;  Godcharles  v.  Wigeman,  113  Pa.  431,  6  Atl.  354.  See  "Constitu- 
tional Law,"  Dec.  Dig.   (Key-No.)  §  276;  Cent.  Dig.  §§  SJ,5,  8^6. 

18  Cope  V.  Rowlands,  2  Mees.  &  W.  149;  Miller  v.  Ammon,  145  U.  S.  421,  12 
Sup.  Ct  884,  36  L.  Ed.  759;  Bowditch  v.  Insurance  Co.,  141  Mass.  292,  4  N. 
E.  798,  55  Am.  Rep.  474;  Aiken  v.  Blaisdell,  41  Vt.  655;  Griffith  v.  Wells,  3 
Denio  (N.  Y.)  226;  Harris  v.  Runnels,  12  How.  79,  13  L.  Ed.  901;  Pangborn 
V.  Westlake,  38  Iowa,  546;  Dillon  v.  Allen,  46  Iowa,  299,  26  Am.  Rep.  145; 
Lester  v.  Bank,  33  Md.  558,  3  Am.  Rep.  211;  Ruckman  v.  Bergholz,  37  N.  J. 
Law,  437;  McKeever  v.  .Beacom,  101  Iowa,  173,  70  N.  W.  112.  Bee  "Con- 
tracts," Dec.  Dig.  {Key-No.)  §  105;  Cent.  Dig.  §§  47S-//97. 
Ci-ABK  Co.\t.(3d  Ed.)— 21 


322  LEGALITY   OF   OBJECT  '  (Ch.  8 

to  the  ground  of  prohibition,  or    the  morality  or  immorality  of  the 

act.^" 

Prohibition — Effect  of  Penalty 

A  statute  may  render  an  agreement  illegal  by  express  prohibition 
or  by  imposing  a  penalty  without  an  express  prohibition.  Where 
the  statute  expressly  provides  that  a  violation  thereof  shall  con- 
stitute a  misdemeanor,  a  contract  in  violation  of  it  is  illegal, 
although  the  statute  does  not  in  express  terms  prohibit  the  con- 
tract nor  declare  it  void.^° 

Some  cases  hold  that,  whenever  a  statute  imposes  a  penalty 
for  an  act  or  omission,  it  impliedly  prohibits  it;^^  but,  according 
to  the  weight  of  authority,  the  impositiofi  of  a  penalty  is  only 
prima  facie  evidence  of  an  intention  to  prohibit.^^  The  inten- 
tion of  the  legislature  will  always  govern,  and  the  court  will  look 
to  the  language  and  subject-matter  of  the  act  and  to  the  evil 
which  it  seeks  to  prevent.  A  consideration  which  receives  weight 
is  whether  the  object  of  the  penalty  is  protection  to  the  public 
and  not  merely  revenue;  for  if  the  penalty  is  designed  to  further 
the  interests  of  public  policy,  as  to  protect  the  public  against 
fraud  or  imposition,  or  to  protect  health  or  morals,  safety  or  good 

18  Bank  of  U.  S.  v.  Owens,  2  Pet.  527,  539,  7  L.  Ed.  508;  Bensley  v.  Big- 
<iold,  5  Barn.  &  Aid.  335 ;  Aubert  v.  Maze,  2  Bos.  &  P.  371 ;  White  v.  Buss,  3 
Cush.  (Mass.)  448;  Puckett  v.  Alexander,  102  N.  C.  95,  8  S.  E.  767,  3  L.  R.  A. 
43;  Penn  v.  Bornman,  102  111.  523;  Lewis  v.  Welch,  14  N.  H.  294;  William 
Wilcox  Mfg.  Co.  V.  Brazos,  74  Conn.  20S.  50  Atl.  722.  See  "Contracts,"  Dec. 
Dig.  {Key-'Mo.)  §  105;  Cent.  Dig.  §§  478-^97. 

2  0  pinney  v.  First  Nat.  Bank,  68  Kan.  223,  75  Paa  119,  1  Ann.  Cas.  331; 
Smith  V.  Robertson,  106  Ky.  472,  50  S.  W.  852,  45  L.  R.  A.  510;  Beeeher  v. 
Peru  Trust  Co.,  49  Ind.  App.  184,  97  N.  K  23.  And  see  Leuthold  v.  Stickney, 
116  Minn.  299,  133  N.  W.  856,  39  L.  R.  A.  (N.  S.)  231,  Ann.  Cas.  1913B,  405 
(holding  that  the  owner  of  a  building  who  is  guilty  of  a  misdemeanor  in  fail- 
ing to  equip  it  with  fire  escapes  as  required  by  statute  cannot  maintain  an 
action  for  the  rent  thereof).  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  107; 
Cent.  Dig.  §  479. 

21  Miller  v.  Post,  1  Allen  (Mass.)  434;  Hallett  v.  Novlon,  14  Johns.  (N.  T.) 
273,  290 ;  Pray  v.  Burbank,  10  N.  H.  377 ;  Doe  v.  Burnham,  31  N.  H.  426 ; 
Durgin  v.  Dyer,  68  ^Nle.  143;  Kleckley  v.  Leyden,  63  Ga.  215;  McConnell  v. 
Kitchens,  20  S.  C.  430,  47  Am.  Rep.  845;  Bacon  v.  Lee,  4  Iowa,  490;  Randall 
V.  Tuell,  89  Me.  443,  36  Atl.  910,  38  L.  R.  A.  143;  Sandage  v.  Manufacturing 
Co.,  142  Ind.  148,  41  N.  E.  380,  34  L.  R,  A.  3(J3,  51  Am.  St.  Rep.  165 ;  Edgerly 
V.  Hale,  71  N.  H.  138,  51  AU.  679.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  107 ; 
Cent.  Dig.  §  .^79. 

2  2  Bensley  v.  Bignold,  5  Barn.  &  Aid.  335;  Cope  v.  Rowlands,  2  Mees.  & 
W.  149;  Griffith  v.  Wells,  3  Denio  (N.  Y.)  226;  Hunt  v.  Knickerbacker,  5 
Johns.  (N.  Y.)  327;  President,  etc.,  of  Springfield  Bank  v.  Merrick,  14  Mass. 
322;  Siedenbender  v.  Charles'  Adm'rs,  4  Serg.  &  R.  (Pa.)  151,  8  Am.  Dec. 
682;  Penn  v.  Bornman,  102  111.  523.  See,  also,  -cases  in  note  18,  supra.  See 
"Contracts;'  Dec.  Dig.  (Key-No.)  §  107;  Cent.  Dig.  §  473- 


§    152)  AGREEMENTS    IN    VIOLATION    OF    POSITIVE    LAW  323 

order,  it  amounts  to  a  prohibition ;  **  but  if  it  is  designed  solely 
for  revenue  purposes,  a  contract  in  violation  of  the  statute  is  not 
necessarily  prohibited.''*  The  propriety  of  applying  a  different 
rule  to  statutes  designed  for  revenue  purposes,  however,  has  be;en 
questioned.^"  Another  consideration,  which  sometimes  receives 
weight,  is  whether  the  penalty  is  recurrent  upon  every  breach 
of  the  provisions  of  the  statute;  fot,  if  it  is  recurrent,  the  infer- 
ence is  that  the  penalty  amounts  to  a  prohibition.^' 

The  absence  of  a  penalty  or  the  failure  of  the  penal  clause  in 
the  particular  instance  will  not  prevent  the  court  from  giving 
effect  to  an  express  prohibition.^^ 

Doing  Indirectly  What  Cannot  he  Done  Directly 

What  the  law  forbids  to  be  done  directly  cannot  be  made  law- 
ful by  doing  it  indirectly.^*  Where  a  bank,  for  instance,  which 
was  itself  prohibited  from  entering  into  a  particular  transaction, 
procured  its  manager  to  appear  in  the  transaction  for  its  benefit, 
it  was  held  that  the  transaction  was  unlawful,  "upon  the  principle 
that  whatever  is  prohibited  by  law  to  be  done  directly  cannot 
legally  be  effected  by  an  indirect  and  circuitous  contrivance."  " 

23  Cope  V.  Rowlands,  2  Mees.  &  W.  149;  Cundell  v.  Dawson,  4  G.  B.  376; 
Griffith  V.  Wells,  3  Denio  (N.  Y.)  226;  Seidenbender  v.  Charles'  Adm'rs,  4 
Serg.  &  R.  (Pa.)  151,  8  Am.  Dec.  682;  Penn  v.  Bornman,  102  111.  523;  Bisbee 
V.  McAllen,  39  Minn.  143,  39  N.  W.  299;  Smith  v.  Robertson  (Ky.)  50  S.  W. 
852,  45  L.  R.  A.  510;  Victorian  Daylesford  Syndicate  v.  Dott,  74  Law  .7.  Ch. 
673,  [1905]  2  Ch.  624,  93  Law  T.  627,  21  Times  Law  R.  742.  See  "Contracts;' 
Dec.  Dig.  (Key-No.)  §  101;  Cent.  Dig.  §  7/79. 

24  Brown  v.  Duncan,  10  Barn.  &  C.  93;  Larned  v.  Andrews,  106  Mass.  435, 
8  Am.  Rep.  346 ;  Corning  v.  Abbott,  54  N.  H.  4G9 ;  Aiken  v.  Blalsdell,  41  Vt. 
655 ;  Ruckman  v.  Bergholz,  37  N.  J,  Law,  437 ;  Rahter  v.  First  Nat.  Bank,  92 
Pa.  393;  Mandlebaum  v.  Gregovich,  17  Nev.  87,  28  Pac.  121,  45  Am.  Rep.  433; 
Vermont  Loan  &  Trust  Co.  v.  Hoffman,  5  Idaho,  376,  49  Pac.  314,  37  L.  R.  A. 
509,  95  Am.  St.  Rep.  186.  See  "Contracts,"  Deo.  Dig.  (Key-No.)  §  107;  Cent. 
Dig.  §  J,79. 

2  5  See  Cope  v.  Rowlands,  2  Mees.  &  W.  149;  Territt  v.  Bartlett,  21  Vt 
184;  Aiken  v.  Blaisdell,  41  Vt  655.  See  "Contracts"  Dec.  Dig.  (Key-No.)  $ 
207;  Cent.  Dig.  §  479. 

2  6  Ritchie  V.  Smith,  6  C.  B.  462;  Anson,  Cont  (Sth  Ed.)  185;  Smith  v. 
Robertson,  106  Ky.  472,  50  S.  W.  852,  45  L.  R.  A.  510.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  107;  Cent.  Dig.  §  ^79. 

2T  Pol.  Cont  (3d  Ed.)  271;  Sussex  Peerage  Case,  11  Clark  &  F.  148,  149. 
See,  also.  Union  Nat  Bank  v.  Louisville,  N.  A.  &  C.  Ry.  Co.,  145  111.  208,  34 
N.  E.  135;  Johnson  v.  Berry,  20  S.  D.  133,  104  N.  W.  1114,  1  L.  R.  A.  (N.  S.) 
1159.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  106;  Cent.  Dig.  §  //77. 

28  Booth  V.  Bank  of  England,  7  Clark  &  F.  509,  540;  Bank  of  U.  S.  v. 
Owens,  2  Pet  527,  530,  7  L.  Ed.  508 ;  Wells  v.  People,  71  111.  532.  See  "Co7ir 
tracts,"  Dec.  Dig.   (Key-No.)  §  105;  Cent.  Dig.  §§  ^68-497. 

2»  Booth  V.  Bank  of  England,  supra.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  | 
105;  Cent.  Dig.  §§  ^68-497. 


324  LEGALITY   OF   OBJECT  (CL  8 

So,  where  the  charter  of  a  bank  forbade  the  taking  of  a  greater 
rate  of  interest  than  6  per  cent.,  but  did  not  say  that  an  agreement 
should  be  void  in  which  such  interest  was  taken,  the  supreme 
court  of  the  United  States  held  that  a  transaction  by  which  the 
bank  discounted  a  note  at  more  than  6  per  cent,  was  void,  though 
the  charter  did  not  expressly  prohibit  an  "agreement"  to  take 
higher  interest,  but  spoke  only  of  "taking,"  not  of  "reserving," 
interest.  The  court  said:  "A  fraud  upon  a  statute  is  a  violation 
of  the  statute,  y  *  *  It  cannot  be  permitted  by  law  to  stip- 
ulate for  the  reservation  of  that  which  it  is  not  permitted  to  re- 
ceive. In  those  instances  in  which  courts  are  called  upon  to 
inflict  a  penalty  *  *  *  it  is  necessarily  otherwise;  for  then 
the  actual  receipt  is  generally  necessary  to  consummate  the  of- 
fense; but,  when  the  restrictive  policy  of  a  law  alone  is  in  con- 
templation, we  hold  it  to  be  an  universal  rule  that  it  is  unlawful 
to  contract  to  do  that  which  it  is  unlawful  to  do."  '° 

Same — Agreements  Prohibited  hut  Declared  Not  Void 

An  agreement  forbidden  by  statute  may  be  saved  from  being 
void  by  the  statute  itself.  Where  a  statute  forbids  an  agreement, 
but  says  that,  if  made,  it  shall  not  be  void,  then,  if  made,  it  is 
a  contract  which  the  courts  must  enforce. ^^ 

Same — Agreements  Simply  Void  and  Unenforceable 

Where  no  penalty  is  imposed,  and  the  intention  of  the  legisla- 
ture appears  to  be  simply  that  the  agreement  is  not  to  be  enforced, 
neither  the  agreement  itself  nor  its  performance  is  to  be  treated 
as  unlawful  for  any  other  purpose." 


/ 


SAME— PARTICULAR  AGREEMENTS  IN  BREACH  OF 

STATUTE 


153.  Among   the    statutes   prohibiting    agreements,   the   following 
may  be  mentioned  as  the  most  important : 

(a)  Statutes  regulating  the  conduct  of  a  particular  trade,  busi- 

ness, or  profession,  or  regulating  dealings  in  particular 
articles  of  commerce. 

(b)  Statutes  regulating  the  traffic  in  intoxicating  liquors. 

(c)  Statutes  prohibiting  labor,  business,  etc.,  on  Sunday. 

30  Bank  of  U.  S.  t.  Oweus,  2  Pet.  527,  7  L.  Ed.  508.  See  "Contracts,**  Bee, 
Dig.  (Key-No.)  §  105;  Cent.  Dig.  §§  468-497. 

81  Lewis  V.  Bright,  4  El.  &  BL  917.  See  "Contracts;'  Dec.  Dig.  {Key-No.) 
S  105;  Cent.  Dig.  §§  1,68-491. 

32  Post,  p.  419. 


§    153)  AGREEMENTS    IN    VIOLATION    OF    POSITIVE   LAW  325 

(d)  Statutes  prohibiting  the  taking  of  usury. 

(e)  Statutes   prohibiting   gaming   and   wagers.     This   head  in- 

cludes statutes  prohibiting  the  buying  and  selling  of  stocl;s 
or  commodities  for  future  delivery,  where  the  parties 
intend,  not  an  actual  delivery,  but  a  settlement  by  paying 
the  difference  between  the  market  £Uid  the  contract  price.*' 

(f)  Statutes  prohibiting  lotteries. 

Regulating  Trade,  Profession,  or  Business 

There  are  numerous  statutes  in  all  of  the  states,  enacted  for  the 
purpose  of  protecting  the  public  in  dealing  with  certain  classes  of 
traders  or  professional  men,  and  with  certain  articles  of  commerce. 
Protection  to  the  public  is  generally  the  object  of  these  statutes, 
and  they  are  construed  as  prohibiting  contracts  entered  into  with- 
out having  complied  with  the  prescribed  conditions.  As_iaUing 
within  this  class  may  be  mentioned  statutes  imposing  a  penalty  on 
deaters^who  fail  to  have  the  weights,  measures,  or  scales  used  by 
theirTapproved  and  sealed  by  the  proper  officer.  Such  a  statute 
is  for  the  protection  of  the  public  against  fraud  and  imposition,  and 
amounts  to  a  prohibition  of  sales  in  measures  or  by  weights  or 
scales  not  sealed,  so  that  a  dealer  who  has  made  such  a  sale  can- 
not recover  the  price.** 

Falling  within  this  class  are  also  statutes  requiring  professional 
men,  such  as  lawyers,  physicians  and  surgeons,  and  others,  to  pro- 
cure a  license,  certificate,  or  diploma  as  a  condition  precedent  to 
the  right  to  engage  in  the  practice  of  their  profession.  These  stat- 
utes are  intended  to  protect  the  public  against  incompetent  and 
unqualified  practitioners,  and  a  person  coming  within  the  statute 
cannot  recover  for  his  services  if  he  has  not  complied  with  its  pro- 
visions.*"* 

88  Independently  of  statute,  wagers  on  subjects  in  which  the  parties  have 
no  interest  are,  in  tliis  country,  generally  held  illegal,  as  being  contrary  to 
public  policy.     Post,  p.  342. 

34  Miller  v.  Post,  1  Allen  (Mass.)  434;  Bisbee  v.  McAllen,  39  Minn.  143, 
39  N.  W.  299 ;  Finch  v.  Barclay,  87  Ga.  393,  13  S.  E.  566 ;  Eaton  v.  Regan, 
114  Mass.  433.     See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  105;  Cent.  Dig.  §  491. 

33  Lawyers.  Hall  v.  Bishop,  3  Daly  (N.  Y.)  109;  Ames  v.  Gilman,  10  Mete. 
(Mass.)  239;  Hittson  v.  Brown,  3  Colo.  304.  But  see  Yates  v.  Robertson,  80 
Va.  475;  Harland  v.  Lilienthal,  53  N.  Y.  438.  Physicians  and  surgeons. 
Bailey  v.  Mogg,  4  Denio  (N.  ^.)  60;  Alcott  v.  Barber,  1  Wend.  (N.  Y.)  52G; 
Orr  V.  Meek,  111  Ind.  40,  11  N.  E.  787;  Coyle  v.  Campbell,  10  Ga.  570;  Puck- 
ett  V.  Alexander,  102  N.  C.  95,  8  S.  E.  767,  3  L.  R.  A.  43 ;  Davidson  v.  Bohl- 
man,  37  Mo.  App.  576 ;  Richardson  v.  Dorraan,  28  Ala.  679 ;  Jordan  v.  Dayton, 
4  Ohio,  295;  Underwood  v.  Scott,  43  Kan.  714,  23  Pac.  942;  Holmes  v.  Halde, 
74  Me.  28,  43  Am.  Rep.  567;  Dow  v.  Haley,  30  N.  J.  Law,  354;  Adams  v. 
Stewart,  5  Har.  (Del.)   l44 ;  HavA-orth  v.  Montgomery,  91  Tenn.  16,  18  S.  W. 


326  LEGALITY   OP   OBJECT  (Ch.  8 

There  are  also,  in  most  of  the  states,  statutes  regulating  dealings 
with  certain  articles  of  commerce.  They  are  designed  either  for 
the  protection  of  the  public  against  fraud  or  imposition  from  the 
sale  of  a  spurious  article,  or  for  the  protection  of  the  public  health 
against  adulterated  articles  of  food,  or  dangerous  substances,  such 
as  powder  and  poisons."  Sales  of  fertilizers,  for  instance,  have 
been  held  illegal  where  the  article  was  not  inspected  or  labeled  as 
required  by  statute.^^ 

In  many  of  the  states  there  are  statutes  prohibiting  the  employ- 
ment of  young  children  in  factories,  and  a  contract  for  such  employ- 
ment would  be  illegal,  so  that  a  father  could  not  recover  for  the 
services  of  a  child  so  employed.*' 

But  if  a  statute  imposing  a  penalty  for  engaging  in  business 
without  a  license  is  enacted,  not  for  the  protection  of  the  public, 
but  for  the  purpose  of  raising  revenue,  it  does  not  render  void  con- 
tracts made  in  violation  thereof.®* 

399;  Hargan  v.  Purdy,  93  Ky.  424,  20  S.  W.  432;  Roberts  v.  Levy  (Cal.)  31 
Pac.  570.  Unlicensed  real  estate  broker.  Buckley  v.  Humason,  50  Minn.  195, 
52  N.  W.  385,  16  L.  R.  A.  423,  36  Am.  St  Rep.  637;  Johnson  v.  Hulings,  103 
Pa.  498,  49  Am.  Rep.  131;  Stevenson  v.  Ewing,  87  Tenn.  46,  9  S.  "W.  230. 
Unlicensed  stockbroker.  Cope  v.  Rowlands,  2  Mees.  &  W.  149;  Hustis  v. 
Pickards,  27  111.  App.  270.  School  teacher  without  certificate.  Ryan  v.  School 
Dlst.,  27  Minn.  433,  8  N.  W.  146;  Wells  v.  People,  71  111.  532.  Unqualified 
conveyancer.  Taylor  v.  Gas  Co.,  10  Exch.  293.  Unlicensed  plumber.  John- 
ston V.  Dahlgren,  31  App.  Div.  204,  52  N.  T.  Supp.  555.  Innkeeper.  Randall 
V.  Tuell,  89  Me.  443,  36  Atl.  910,  38  L.  R.  A.  143.  Keeper  of  stallion.  Smith 
V.  Robertson,  106  Ky.  472,  50  S.  W.  852 ;  Nelson  v.  Beck,  89  Me.  264,  36  Atl. 
374.  See  "Attorney  and  Client,'"  Dec.  Dig.  (Key-No.)  §  ISG;  Cent.  Dig.  §  298; 
"Physicians  and  Surgeons,"  Dec.  Dig.  (Key-No.)  §  22;  Cent.  Dig.  §  51;  "Bro- 
kers," Dec.  Dig.  (Key-No.)  §  ^2;  Cent.  Dig.  §  ^3. 

86  Sale  of  oleomargarine.  Waterbury  v.  Egan,  3  Misc.  Rep.  355,  23  N.  Y. 
Supp.  115;  Braun  v.  Keally,  146  Pa.  519,  23  Atl.  389,  28  Am.  St.  Rep.  811. 
Sales  by  unregistered  pharmacist  in  charge  of  drug  store  in  violation  of  stat- 
ute. Shattuck  V,  Watson,  164  Mich.  167,  129  N.  W.  196.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  105;   Cent.  Dig.  §§  468-^97. 

87  McConnell  v.  Kitchens,  20  S.  C.  430,  47  Am.  Rep.  845 ;  Conley  v:  Sims,  71 
Ga.  101;  Johnston  v.  McConnell,  65  Ga.  129;  Baker  v.  Burton  (C.  C.)  31  Fed. 
401;  Williams  v.  Barfield  (C.  C.)  31  Fed.  398;  Campbell  v.  Segars,  81  Ala. 
259,  1  South.  714;  VANMETER  v.  SPURRIER,  94  Ky.  22,  21  S.  W.  337, 
Throckmorton  Cas.  Contracts,  222.  Contra,  Memeyer  v.  Wright,  75  Va.  239, 
40  Am.  Rep.  720.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  105;  Cent.  Dig.  §§ 
Ji68-J,97. 

3  8  Birkett  v.  Chatterton,  13  R.  I.  299,  43  Am.  Rep.  30.  Under  eight-hour 
law,  making  violation  of  act  a  misdemeanor,  an  employs  cannot  recover  for 
overtime.  Short  v.  Mining  Co.,  20  Utah,  20,  57  Pac.  720,  45  L.  R.  A.  603.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)   §  105;  Cent.  Dig.  §§  468-^97. 

89  Sunflower  Lumber  Co.  v.  Turner  Supply  Co.,  1-58  Ala.  191,  48  South.  510, 
132  Am.  St.  Rep.  20  [cit.  Clark  on  Contracts  (1st  Ed.)  385].  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  106;  Cent.  Dig.  §  ^77. 


§    153)  AGREEMENTS   IN    VIOLATION    OF    POSITIVE   LAW  327 

Further  illustrations  of  statutes  within  this  class  are  referred  to 
below."" 

Same — Traffic  in  Intoxicating  Liquors*^ 

Where  a  statute  in  terms  prohibits  the  sale  of  intoxicating  liq- 
uors, a  contract  of  sale  is  of  course  invalid.  Some  difficulty  has 
arisen  where  the  statute  was  not  absolutely  prohibitory,  but  mere- 
ly prescribed  certain  conditions  to  be  complied  with  by  dealers. 
An  example  is  where  a  statute  imposes  a  penalty  for  selling  with- 
out a  license.  It  is  generally  held  that  such  a  statute  is  not  mere- 
ly for  purposes  of  revenue,  but  is  to  diminish  the  evils  of  intem- 
perance, and  prevent  disreputable  and  objectionable  persons  from 
engaging  in  the  business,  and  that  sales  without  a  license  are  pro- 
hibited and  rendered  illegal.*'^ 

Somewhat  in  line  with  these  statutes  are  those  which  regulate 
the  conduct  of  saloons,  such  as  statutes  prohibiting  billiard  tables, 
bowling  alleys,  etc.,  in  connection  with  a  saloon.  An  agreement 
in  breach  of  such  a  statute  is  illegal.  A  carpenter,  for  instance, 
cannot  recover  the  price  of  erecting  a  bowling  alley  in  a  building 
appurtenant  to  a  tavern,  where  a  statute  prohibits  it  from  being 
so  kept.*' 

So,  also,  under  a  statute  imposing  a  penalty  on  any  person  own- 
ing or  controlling  any  premises  who  shall  suffer  them  to  be  used 
for  the  sale  of  spirituous  liquors,  a  person  who  owns  a  building, 
and  has  knowledge  that  his  tenant  at  will  is  using  the  premises 

<o  Loan  by  pawnbroker  who  has  neglected  to  comply  with  statute.  Fer- 
gusson  V.  Norman,  5  Bing.  N.  C.  76.  Failure  of  printer  to  print  his  name  on 
the  work  as  required  by  statute.  Bensley  v.  Bignold,  5  Barn.  &  Aid.  335. 
Unlicensed  peddlers.  Stewartson  v.  Lotbrop,  12  Gray  (Mass.)  52.  Agreement 
to  construct  building  not  complying  with  building  regulations.  Stevens  v, 
Gourley,  7  O.  B.  (N.  S.)  99;  Burger  v.  Koelsch,  77  Hun,  44,  28  N.  Y.  Supp. 
460.  Failure  to  measure  wood  sold,  as  required  by  statute.  Pray  v,  Burbank, 
10  N.  H.  377.  Agreement  for  threshing  grain,  where  machine  is  not  boxed 
as  required  by  a  statute,  intended  to  prevent  injury  to  workmen.  Dillon  v. 
Allen,  46  Iowa,  299,  26  Am.  Rep.  145.  Sale  of  shingles  not  of  size  prescribed. 
Wheeler  v.  Russell,  17  Mass.  258.  See  "Contracts,'"  Dec.  Dig.  (Key-No.)  §  105; 
Cent.  Dig.  §§  468-7,97. 

41  On  this  subject,  see  Black,  Intox.  Llq.  §§  242-276. 

42  Griffith  V.  Wells,  3  Denio  (N.  Y,)  226;  Territt  v,  Bartlett,  21  Vt.  184; 
Aiken  v.  Blaisdell,  41  Vt.  655;  O'Bryan  v.  Fitzpatrick,  48  Ark.  487,  3  S.  W, 
527;  Vannoy  v,  Patton,  5  B.  Mon.  (Ky.)  248;  Solomon  v,  Dreschler,  4  Minn. 
278  (Gil.  197)  ;  Lewis  v,  Welch,  14  N,  H,  294 ;  Cobb  v.  BilUngs,  23  Me.  470 ; 
Melchoir  v,  McCarty,  31  Wis.  2.j2,  11  Am.  Rep.  605 ;  Bach  v.  Smith,  2  Wash, 
T.  145,  3  Pac.  831.  See  "Intoxicating  Liquors,"  Dec.  Dig.  (Key-No.)  §§  327- 
830;  Cent.  Dig.  §§  J,G7-4S5. 

43  Spurgeon  v.  McElwain,  6  Ohio,  442,  27  Am.  Dec.  266,  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  105;  Cent.  Dig.  §§  468-J,97. 


328  LEGALITY   OF   OBJECT     .  (Ch.  8 

for  the  sale  of  spirituous  liquors,  and  who  permits  him  to  continue 
in  possession,  cannot  recover  for  use  and  occupation.** 

Contracts  in  Breach  of  Sunday  Lazvs 

The  common  law  does  not  prohibit  the  making  of  contracts  on 
Sunday,  and,  in  the  absence  of  statutory  prohibition,  such  con- 
tracts are  as  valid  as  if  made  on  any  other  day.*^  In  most  states, 
however,  statutes  have  been  enacted  on  the  subject.*® 

Where  the  statute  expressly  prohibits  the  making  of  contracts 
on  Sunday,  and  declares  that  they  shall  be  void,  there  should  be 
no  difficulty  in  applying  it ;  *^  and,  if  a  statute  prohibits  servile  work 
and  labor  on  Sunday,  there  can  of  course  be  no  recovery  for  such 
work.** 

Where  it  is  provided  that  no  person  shall  do  any  labor,  work,  or 
business  on  Sunday,  all  secular  business  is  prohibited.  Not  only 
would  a  contract  to  do  work  on  Sunday,  made  on  some  other  day, 
be  illegal  because  of  the  object,*'  but  a  contract  made  on  Sunday 
to  work  on  another  day  would  be  likewise  prohibited.  The  mak- 
ing of  a  contract  is  secular  business,  within  the  meaning  of  the 
statute."^**     But  where  the  prohibition  is  only  against  servile  work 

**  Mitchell  V.  Scott,  62  N.  H.  596;  post,  p.  414.  See  "Contracts,"  Dec.  Dig. 
{Key-^'o.)  §  105;  Cent.  Dig.  §§  4C8-^97. 

* 5  story  V.  Elliott,  8  Cow.  (N.  Y.)  27,  18  Am.  Dec.  423;  Sayles  v.  Smith, 
12  Wend.  (N.  Y.)  57,  27  Am.  Dec.  117;  Richmond  v.  Moore,  107  111.  429,  47 
Am.  Rep.  445;  Bloom  v.  Richards,  2  Ohio  St.  387;  Swann  v.  Swann  (C.  C.) 
21  Fed.  299;  Adams  v.  Gay,  19  Vt.  358;  Brown  v.  Browning,  15  R.  I.  422,  7 
Atl.  403,  2  Am.  St,  Rep.  908.  See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  11;  Cent. 
Dig.  §§  30-31 

*«  Sunday  laws  are  not  an  unconstitutional  interference  with  the  religious 
Uberty  of  the  people.  State  v.  O'Rourk,  35  Neb.  614,  53  N.  W.  591,  17  L.  R.  A. 
830;  State  v.  Judge,  39  La.  Ann.  132,  1  South.  437;  Scales  v.  State,  47  Ark. 
476,  1  S.  W.  7G9,  58  Am.  Rep.  768 ;  Petit  v.  Minnesota,  177  U.  S.  164,  20  Sup. 
Gt  666,  44  L.  Ed.  716;  Hennington  v.  State,  163  U.  S.  299,  16  Sup.  Ct  1086, 
41  L.  Ed.  166 ;  State  v.  Powell,  58  Ohio  St.  324,  50  N.  E.  900,  41  L.  R.  A.  854. 
See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  11;   Cent.  Dig.  §§  30-34. 

4T  Burns  v.  Moore,  76  Ala.  339,  52  Am.  Rep.  332.  In  Maine,  and  probably  in 
some  of  the  other  states,  the  statute  provides  that  the  defense  that  a  con- 
tract was  executed  on  Sunday  cannot  be  made  to  an  action  thereon  unless 
the  consideration  is  returned.  Wentworth  v.  Woodside,  79  Me.  156,  8  Atl. 
763 ;  First  Nat.  Bank  v.  Kingsley,  84  Me.  Ill,  24  Atl.  794 ;  Wheelden  v.  Ly- 
ford,  84  Me.  114,  24  Atl.  793.  See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  11;  Cent. 
Dig.  §§  30-34. 

48  Watts  V.  Van  Ness,  1  Hill  (N.  Y.)  76.  See  "Sunday,"  Deo.  Dig.  (Key-No.) 
§  11;  Cent.  Dig.  %^  30-34. 

*9  HANDY  V.  ST.  PAUL  GLOBE  PUB.  CO.,  41  Minn.  188,  42  N.  W.  872, 
4  L.  R.  A.  466,  16  Am.  St.  Rep.  695,  Throckmorton  Cas.  Contracts,  227.  See 
"Sunday,"  Dec.  Dig.   (Key-No.)  §  11;  Cent.  Dig.  ^^30-34. 

eoNorthrup  v.  Foot,  14  Wend.  (N.  Y.)  248;  Pattee  v.  Greely,  13  Mete. 
(Mass.)  284;  Towle  v.  Larrabee,  26  Me.  464;  Lyon  v.  Strong,  6  Vt  219;  Var- 


§    153)  AGREEMENTS   IN    VIOLATION    OF    POSITIVE    LAW  329 

and  labor,  the  making  of  contracts,  including  the  execution  of  com- 
mercial paper,  is  not  generally  regarded  as  included. ^^  Again,  if 
the  prohibition  is  confined  to  labor,  business,  or  work  of  a  man's 
"ordinary  calling,"  contracts  or  other  business  or  work  on  Sunday 
by  a  person  is  not  illegal  unless  it  is  within  his  ordinary  calling." 
A  real-estate  broker  or  lawyer,  therefore,  would  not  violate  the  stat- 
ute by  purchasing  or  selling  a  horse  on  Sunday.  If  the  statute  pro- 
hibits the  exposure  of  merchandise  for  sale  on  Sunday,  the  prohibi- 
tion extends  only  to  public  sales,  and  does  not  prevent  private  con- 
tracts of  sale  without  such  exposure."' 

Same — Works  of  Necessity  or  Chanty 

In  all  of  the  states  the  statutes  expressly  except  from  the  prohi- 
bition works  of  necessity  or  charity,  but  as  to  what  constitutes 
a  work  of  necessity  or  charity  the  authorities  are  somewhat  con- 

ney  v.  French,  19  N.  H.  2.33;  Nihert  v.  Baghnrst,  47  N.  J.  Eq.  201,  20  Atl. 
252;  Id.  (N.  J.)  25  Atl.  474;  Calhoun  v.  PhilUps,  87  Ga.  482,  13  S.  B.  593; 
Goss  V.  Whitney,  27  Vt.  272;  Kepner  v.  Keefer,  6  Watts  (Pa.)  231,  31  Am. 
Dec.  4G0;  Smith  v.  Railway  Co.,  83  Wis.  271,  50  N.  W.  497,  53  N.  W.  550: 
Brazee  v.  Bryant,  50  Mich.  136,  15  N.  W.  49 ;  Durant  v.  Rhener,  26  Minn.  362, 
4  N.  W.  610.  A  notice  to  a  tenant.  Cannon  v.  Ryan,  49  N.  J.  Law,  314,  8 
Atl.  293.  Indorsement  of  note.  First  Nat.  Bank  v.  Klngsley,  84  Me.  Ill,  24 
Atl.  794.  Selling  of  soda  water  by  a  druggist  is  "worldly  employment." 
Splane  v.  Commonwealth  (Pa.)  12  Atl.  431.  Extension  of  time  of  payment  of 
debt.  Rush  v.  Rush  (N.  J.  Ch.)  18  Atl.  221.  Casual  execution  of  note  is  not 
"labor."  Holden  v.  O'Brien,  86  Minn.  297,  90  N.  W.  531.  See  "Sunday,"  Dec. 
Dig.  (Key-No.)  §  IS;  Cent.  Dig.  §§  36-',-',. 

51  Birks  V.  French,  21  Kan.  238;  Richmond  v.  Moore,  107  111.  429,  47  Am. 
Rep.  445;  Boynton  v.  Page,  13  Wend.  (N.  Y.)  425.  Contra,  Reynolds  v.  Ste- 
venson, 4  Ind.  619;  Link  v.  Clemmens,  7  Blackf.  (Ind.)  479.  Sale  of  tickets 
by  manager  of  theater,  and  superintending  Sunday  performance.  Is  "labor- 
ing." Quarles  v.  State,  55  Ark.  10,  17  S.  W.  269,  14  L.  R.  A.  192.  Running 
excursion  steamboat  Is  "worldly  employment."  Commonwealth  v.  Rees,  10 
Pa.  Co.  Ct.  R.  545.  Acknowledgment  of  debt  barred  by  statute  of  limitations. 
Thomas  v.  Hunter,  29  Md.  4(X>.  Athletic  games  and  sports  are  not  within 
the  prohibition  against  labor.  St.  Louis  Agr.  &  Mech.  Ass'n  v.  Delano,  37 
Mo.  App.  284;  Id.,  108  Mo.  217,  18  S.  W.  1101.  See  "Sunday"  Dec.  Dig. 
{Key-So.)  §  11;   Cent.  Dig.  §§  SOSI,. 

52  Hazard  v.  Day,  14  Allen  (Mass.)  487,  92  Am.  Dec.  790  (construing  the 
Rhode  Island  statute)  ;  Allen  v.  Gardner,  7  R.  I.  22 ;  Amis  v.  Kyle,  2  Yerg. 
(Tenn.)  31,  24  Am.  Dec.  463;  Sanders  v.  Johnson,  29  Ga.  520;  Mills  v.  Wil- 
liams, 16  S.  C.  593 ;  Hellams  v.  Abercrombie,  15  S.  C.  110,  40  Am.  Rep.  684 ; 
Swann  v.  Swann  (C.  C.)  21  Fed.  299.  See  "Sunday,"  Dec.  Dig.  {Key-No.)  § 
11;    Cent.  Dig.  §§  SOS',. 

53  Boynton  v.  Page,  13  Wend.  (N.  Y.)  425;  Batsford  v.  Every,  44  Barb.  (N. 
Y.)  618.  See,  also.  Ward  v.  Ward,  75  Minn.  269,  77  N.  W.  965.  But  pubUc 
exposure  and  sale  of  new.spapers  is  within  the  statute.  Smith  v.  Wilcox,  24 
N.  Y.  353,  82  Am.  Dec.  302.  The  statute  also  applies  to  slot  machines  auto- 
matically vending  wares.  Cain  v.  Daly,  74  S.  C.  480,  55  S.  B.  110.  See 
"Sunday,"  Dec.  Dig.   {Key-No.)  §  11;    Cent.  Dig.  §§  S0-S4. 


330  LEGALITY   OF   OBJECT  (Ch.  8 

flicting.  As  a  rule,  whatever  must  be  done  in  order  to  preserve 
life  or  health  ^*  or  property,"'  and  must  be  done  on  Sunday  if  done 
at  all,  is  a  work  of  necessity.'*     If  property  is  in  imminent  danger, 

B4  Smith  V.  Watson,  14  Vt.  332;  Aldrich  v.  Blackstone,  128  Mass.  148.  See 
"Sunday,"  Deo.  Dig.  (Key-No.)  §  7;    Cent.  Dig.  §§  lJ,-20. 

65  Johnson  v.  People,  42  111.  App.  594  (reaping  field  of  grain)  ;  Whitcomb 
V,  Oilman,  35  Vt  297;  Parmelee  v.  Wilks,  22  Barb.  (N.  Y.)  539;  State  v. 
McBee,  52  W.  Va.  257,  43  S.  E.  121,  60  L.  R.  A.  638.  See  "Sunday,"  Dec. 
Dig.  (Key-No.)  §  7;   Cent.  Dig.  §§  1^-20. 

5  6  "By  the  word  'necessity'  in  the  exception  we  are  not  to  understand  a 
physical  and  absolute  necessity ;  but  a  moi'al  fitness  or  propriety  of  the  work 
and  labor  done,  under  the  circumstances  of  any  particular  case,  may  well  be 
deemed  necessity  within  the  statute."  Flagg  v.  Inhabitants,  4  Cush.  (Mass.) 
243.  And  see  Burns  v.  Moore,  76  Ala.  339.  52  Am.  Rep.  332.  The  following 
contracts  have  been  held  to  be  within  the  exceptions:  Contract  securing 
Indemnity  from  an  absconding  debtor  pursued  and  overtaken  on  Sunday. 
Hooper  v.  Edwards,  18  Ala.  280.  Repairing  railroad  tracks.  Yonoski  v. 
State,  79  Ind.  393,  41  Am.  Rep.  614.  Bail  bond.  Hammons  v.  State,  59  Ala. 
164,  81  Am.  Rep.  13.  Repairing  defect  in  highway.  Flagg  v.  Inhabitants, 
supra.  Shoeing  horses  used  in  carrying  mail.  Nelson  v.  State,  25  Tex.  App. 
599,  8  S.  W.  927.  Loading  vessel  where  there  is  danger  of  navigation  closing. 
McGatrick  v.  Wason,  4  Ohio  St.  566.  Pumping  oil  well ;  whether  a  work  of 
necessity  is  a  question  of  fact  Commonwealth  v.  Oillespie,  146  Pa.  546,  23 
Atl.  393.  Transportation  of  cattle  by  a  railroad  company,  so  that  it  cannot 
excuse  itself  for  delay  on  the  ground  that  the  delay  was  on  Sunday.  Phila- 
delphia, W.  &  B.  R.  Co.  V.  Lehman,  56  Md.  209,  40  Am.  Rep.  415.  Riding  for 
exercise.  Sullivan  v.  Railroad  Co.,  82  Me.  196,  19  Atl.  1G9,  8  L.  R.  A.  427. 
Telegram  from  husband  to  wife  explaining  absence.  Burnett  v.  Telegraph 
Co.,  39  Mo.  App,  599.  Telegram  to  physician.  W.  U.  Tel.  Co.  v.  Oriffin,  1 
Ind.  App.  46.  27  N.  E.  113.  Telegram  announcing  death  of  father.  W.  U. 
Tel.  Co.  V.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St  Rep.  23.  Transaction 
of  business  by  benefit  association.  Pepin  v.  Societe,  24  R.  I.  550,  54  Atl.  47, 
60  L.  R.  A.  626.  The  following  have  been  held  not  within  the  exception: 
Note  given  to  procure  discharge  of  person  arrested  on  charge  of  bastardy. 
Shippy  v.  Eastwood,  9  Ala.  198.  Telegram  respecting  ordinary  business  af- 
fairs. W.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16.  Gathering  a  crop.  Com. 
V.  White,  190  Mass.  578,  77  N.  E.  636.  Publication  and  sale  of  newspaper. 
HANDY  V.  ST.  PAUL  GLOBE  PUB.  CO.,  41  Minn.  188,  42  N.  W.  872,  4  L.  R. 
A.  466, 16  Am.  St.  Rep.  695,  Throckmorton  Cas.  Contracts,  227 ;  Commonwealth 
V.  Matthews,  12  Pa.  Co.  Ct  R.  149,  22  Pittsb.  Leg.  J.  (N.  S.)  309;  Id.,  152  Pa, 
166,  25  Atl.  548,  18  L.  R.  A.  761.  Ordinary  sales  or  deliveries  of  ice  or  fresh 
meat  State  v.  James,  81  S.  C.  197,  62  S.  E.  214,  18  L.  R.  A.  (N.  S.)  617,  128 
Am.  St  Rep.  902,  16  Ann.  Cas.  277 ;  Arnheiter  v.  State,  115  Ga.  572,  41  S.  E. 
989,  58  L.  R.  A.  392.  Shaving  and  cutting  or  dressing  hair  by  a  barber. 
PhilUps  v.  Innes,  4  Clark  &  F.  234;  State  v.  Schuler  (Ohio)  23  Wkly.  Law 
Bui.  450;  State  v.  Sopher,  25  Utah,  318,  71  Pac.  482,  60  L.  R.  A.  408,  95 
Am.  St  Rep.  845.  But  see,  contra,  Ungericht  v.  State,  119  Ind.  379,  21  N.  E. 
1082,  12  Am.  St  Rep.  419;  Stone  v.  Graves,  145  Mass.  353,  13  N.  E.  906. 
Sale  of  meat  by  butcher.  Tobacco  is  not  within  exception  allowing  sale  of 
"drugs  or  medicines,  provisions,  or  other  articles  of  immediate  necessity." 
State  v.  Ohmer,  34  Mo.  App.  115.  See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  7; 
Vent.  Dig.  §§  U-20. 


§    153)  AGREEMENTS    IN    VIOLATION    OF   POSITIVE    LAW  331 

work  may  be  done  on  Sunday  to  save  it.  If,  however,  the  work  is 
only  to  prevent  loss  on  a  secular  day,  as  where  a  mill  wheel  is 
cleaned  on  Sunday  because  to  do  so  on  another  day  will  make  it 
necessary  to  shut  down  and  stop'  work  for  the  purpose,  it  is  not  a 
work  of  necessity."^  Nor  is  it  sufficient  to  make  a  work  one  of 
necessity  that  it  is  profitable  to  those  engaged  in  it  and  that  it 
serves  the  convenience  or  tastes  or  wishes  of  the  public  generally.'* 
Any  act  connected  with  religious  worship, "^^  or  for  the  relief  of 
suffering  or  distress,®"  is  an  act  of  charity,  and  may  be  performed 
on  Sunday. 
Sam e — Incomplete  Tr ansae tions 

The  fact  that  negotiations  are  carried  on,  and  the  terms  of  a  con- 
tract agreed  upon,  on  Sunday,  where  the  contract  is  not  really 
made  until  a  week  day,  does  not  render  the  contract  illegal.*^  A 
promissory  note,  for  instance,  or  a  deed,  though  written  and  signed 
on  Sunday,  is  valid  if  delivered  on  Monday,  since  it  does  not  take 
effect  until  delivery ;  "  and  a  sale  of  goods,  though  the  negotiations 

6T  McGrath  v.  Merwin,  112  Mass,  467,  17  Am.  Rep.  119.  And  see,  to  the 
same  effect,  Hamilton  v.  Austin,  62  N.  H.  575.  Contra,  Hennersdorf  v.  State, 
25  Tex.  App.  597,  8  S.  W.  920,  8  Am.  St  Rep.  448.  See  '"Sunday,"  Dec.  Dig. 
{Key-No.)  §  7;    Cent.  Dig.  §§  1^-20. 

B8  HANDY  V.  ST.  PAUL  GLOBE  PUB.  CO.,  41  Minn.  188,  42  N.  W.  872, 
4  L.  R.  A.  406,  16  Am.  St.  Rep.  695,  Throckmorton  Cas.  Contracts,  227  (pub- 
lishing newspaper).  See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig.  §§ 
U-20. 

5  8  Church  subscriptions  made  on  Sunday  are  enforceable,  see  Allen  v.  Duf- 
fle, 43  Mich,  1,  4  N.  W.  427,  38  Am.  Rep.  159;  Bryan  v.  Watson,  127  Ind. 
42,  26  N.  E.  606,  11  L.  R.  A.  63 ;  Dale  v.  Knepp,  98  Pa.  389,  38  Am.  Rep,  165, 
note,  42  Am,  Rep,  624;  Hodges  v.  Nalty,  113  Wis.  567,  89  N.  W.  535.  But 
see  Catlett  v.  Trustees,  62  Ind.  365,  30  Am,  Rep,  197,  Where  a  carriage  ia 
hired  on  Sunday,  the  contract  is  not  made  legal  "because  the  hirer  did  a  kind 
act  by  conveying  a  young  lady  home  who  had  been  'to  meeting'  during  the 
day,"  Tillock  v.  Webb,  56  Me.  100.  See  "Sunday,"  Dec.  Dig.  (Key-No.)  § 
7;    Cent.  Dig.  §§  U-20. 

«o  Buck  V.  City  of  Biddeford,  82  Me.  433,  19  Atl.  912.  See  "Sunday,"  Dec. 
Dig.   (Key-No.)  §  7;    Cent.  Dig.  §§  1^-20. 

81  Taylor  v.  Young,  61  Wis.  314,  21  N.  W,  408;  McKinnis  v.  Estes.  81  Iowa, 
749,  46  N,  W.  987;  Tuckerman  v.  Hinkey,  9  Allen  (Mass.)  452;  Dickinson  v. 
Richmond,  97  Mass.  45 ;  Love  v.  Wells,  25  Ind,  503,  87  Am.  Dec.  375 ;  Uhler 
V.  Applegate,  26  Pa.  140;  Beitenmau's  Appeal,  55  Pa.  183;  Meriwether  v. 
Smith,  44  Ga.  541;  Bryant  v.  Booze,  55  Ga,  438;  Tyler  v.  Waddington,  58 
Conn.  375,  20  Atl.  335,  8  L.  R.  A.  657 ;  Merrill  v.  Downs,  41  N.  H,  72 ;  Stack- 
pole  V,  Symouds,  23  N.  H.  229;  Moseley  v.  Vanhooser,  6  Lea  (Tenn.)  286,  40 
Am.  Rep.  37 ;  Butler  v.  Lee,  11  Ala,  885,  46  Am,  Dec,  230.  That  bill  of  sale 
is  made  on  Sunday,  in  pursuance  of  sale  made  on  previous  day,  does  not  in- 
validate sale,  Foster  v,  Wooten,  67  Miss.  540,  7  South,  501.  But  see  Hau- 
chett  V.  Jordan,  43  Minn.  149,  45  N,  W,  617.  See  "Sunday,"  Dec.  Dig.  (Key- 
No.)  §  12;   Cent.  Dig.  §  55. 

•  »  King  T.  Fleining,  72  111.  21,  22  Am.  Rep.  131 ;    Bell  y.  Mahln,  69  Iowa, 


332  LEGALITY  OF  OnjECT  (Ch.  8 

are  on  Sunday,  is  valid  if  the  goods  are  not  set  apart  and  delivered 
until  Monday." 

Sam  e — Ratification 

Whether  a  contract  made  on  Sunday  is  capable  of  ratification  is 
a  question  on  which  there  is  much  conflict  of  authority.  Upon 
principle,  it  seems  that  the  contract,  being  void  in  its  inception, 
is  incapable  of  ratification,  and  many  cases  so  hold.®*  There  is  a 
tendency,  however,  to  avoid  the  hardship  resulting  from  the  in- 
validity of  such  contracts,  and  many  cases  declare  that  such  con- 
tracts are  capable  of  ratification.®"  Where_lhe^^ontract  is  one  of 
sale  or  exchange  accompanied  by  actual  delivexy^  there  is  author- 
ity to  the  effect  that  the  property  does  not  pass,  and  that  the 
seller  may  maintain  replevin^®  or  trover;  '^   in  which  case  it  seems 

408,  29  N.  W.  331 ;  Hill  v.  Dunham,  7  Gray  (:SIass.)  543 ;  Stacey  v.  Kemp,  97 
Mass.  166;  Lovejoy  v.  Whipple,  18  Vt.  370,  46  Am.  Dec.  157;  Hilton  v. 
Houghton,  35  Me.  143 :  Gibbs  &  Sterrett  Mfg.  Co.  v.  Brucker,  111  U.  S.  597, 
4  Sup.  Ct.  572,  28  L.  Ed.  534 ;  Schwab  v.  Rigby,  38  Minn.  395.  38  N.  W.  101 ; 
Dohoney  v.  Dohoney,  7  Bush  (Ky.)  217;  Beman  v.  Wessels,  53  Mich.  549,  19 
N.  W.  179;  Wilson  v.  Winter  (C.  C.)  6  Fed.  16.  So,  where  one  of  two  part- 
ners executes  an  assignment  on  Sunday,  but  the  other  partner  executes  and 
delivers  it  on  a  secular  day,  the  instrument  is  valid.  Farwell  v.  Webster,  71 
Wis.  485.  37  N.  W.  437.  See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig. 
§  35. 

8  3  Rosenblatt  v.  Townsley,  73  Mo.  536;  Banks  v.  Werts,  13  Ind.  203.  See 
"Sunday,"  Dec.  Dig.  (Key-No.)  §  12;   Cent.  Dig.  §  35. 

«*  Day  V.  McAllister,  15  Gray  (Mass.)  4.13;  Allen  v.  Deming,  14  N.  H.  133, 
40  Am.  Dec.  179 ;  WLnfield  v.  Dodge,  45  Mich.  35.j,  7  N.  W.  900,  40  Am.  Rep. 
476;  Tillock  v.  Webb,  56  Me.  100;  Plaisted  v.  Palmer,  03  Me.  .576;  Kounta 
v.  Price,  40  Miss.  341;  Grant  v.  McGnith,  56  Conn.  333,  15  Atl.  370;  Vinz 
V.  Beatty,  61  Wis.  645,  21  N.  W.  787;  Riddle  v.  Keller,  61  N.  J.  Eq.  513,  48 
Atl.  818;  Acme  Electrical,  etc.,  Co.  v.  Van  Derbeck,  127  Mich.  341,  86  N.  W. 
786,  89  Am.  St.  Rep.  476;  Tennent-Stribling  Shoe  Co.  v.  Roper,  94  Fed.  739, 
36  C.  C.  A.  455.    See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  15;    Cent.  Dig.  §  46. 

8  5  Russell  V.  Murdock,  79  Iowa,  101,  44  N.  W.  237,  18  Am.  St  Rep.  348; 
Kuhns  V.  Gates,  92  Ind.  66;  Adams  v.  Gay,  19  Vt.  358;  Parker  v.  Pitts,  73 
Ind.  597,  38  Am.  Rep.  155 ;  Banks  v.  Werts,  13  Ind.  203 ;  Gwinn  v.  Simes,  61 
Mo.  335;  Wilson  v.  Milligan,  75  Mo.  41;  Campbell  v.  Young,  9  Bush  (Ky.) 
245 ;  Williamson  v.  Brandenberg,  6  Ind.  App.  97,  32  N.  E.  1022 ;  Sumner  v. 
Jones,  24  Vt  317;  Flinn  v.  St  John,  51  Vt  334;  Schmidt  v.  Thomas,  75  Wis. 
529,  44  N.  W.  771 ;  Van  Hoven  v.  Irish  (C.  C.)  10  Fed.  13,  3  McCrary,  443 ; 
Cook  V.  Forker,  193  Pa.  461,  44  Atl.  560,  74  Am.  St  Rep.  699.  See  "Sunday," 
Dec.  Dig.   (Key-No.)  §  15;    Cent.  Dig.  §  46. 

66  Tucker  v.  Mowray,  12  Mich.  378;  Winfleld  v.  Dodge,  45  Mich.  355,  7  N. 
W,  906,  40  Am.  Rep.  476.     See,  also,  Magee  v.  Scott,  9  Gush.  (Mass.)  148.  55 

67  Ladd  V.  Rogers,  11  Allen  (Mass.)  209.  See,  also,  Myers  v.  Meinrath,  101 
Mass.  366,  369,  3  Am.  Rep.  368;  Hall  v.  Corcoran,  107  Mass.  251,  9  Am.  Rep. 
30;  Cranson  v.  Goss,  107  Mass.  439,  441,  9  Am.  Rep.  45.  See  "Sunday,"  Dec. 
Dig.  (Key-No.)  §  15;   Cent.  Dig.  §  46. 


§  153)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE    LAW  333 

that  a  sufficient  consideration  for  a  new  promise  to  pay  may  be 
found  in  the  consent  of  the  seller  to  the  transfer  of  the  property 
at  the  time  of  such  promise;  the  liability  of  the  promisor  resting, 
however,  upon  a  new  contract,  and  not  upon  the  ratification  of 
the  original  contract.®*  So,  if  a  sale  is  made  on  Sunday,  but 
the  goods  are  not  delivered  until  a  week  day,  the  buyer  is  liable, 
not  upon  the  original  promise,  but  upon  an  implied  promise  ^to  pay 
for  the  goods.® »  A  contract  for  the  performance  on  Sunday  of 
work  forbidden  by  law  may  not  be  ratified,  because  the  very  object 
of  the  contract  is  a  violation  of  law.''"  A  contract  made  on  a 
previous  day  cannot  be  rescinded  on  Sunday/^ 
Usury 

At  common  law  a  man  could  contract  for  and  recover  any 
amount  of  interest  for  a  loan  of  money  that  the  borrower  might 
be  willing  to  give;  but,  to  protect  persons  in  necessity  against 
unconscionable  exactions,  usury  laws  have  been  enacted  in  most 
of  the  states,  prescribing  a  legal  rate  of  interest. 

In  some  states  the  contract  in  which  usury  is  charged  is  de- 
Am.  Dec.  49.  Contra,  Smith  v.  Bean,  15  N.  H.  577,  578;  Kinney  v.  McDer- 
mott,  55  Iowa,  674,  8  N.  W.  656,  39  Am.  Rep.  191.  See,  also,  Simpson  v. 
Nichols,  3  M.  &  W.  244,  as  corrected  in  5  M.  &  W.  702  (questioning  Williams 
V,  Paul,  6  Bing.  653).     See  "Sunday,"  Dec.  Dig.   (Key-No.)  §  15;    Cent.  Dig 

«8  Winfield  v.  Dodge,  45  Mich.  355,  7  N.  W.  906,  40  Am.  Rep.  476 ;  Haacke 
V.  Knights  of  Liberty,  76  Md.  429,  25  Atl.  422;  Brewster  v.  Banta,  66  N.  J. 
Law,  367,  49  Atl.  718.  An  action  may  be  maintained  on  a  new  promise; 
Williams  v.  Paul,  6  Bing.  653 ;  Harrison  v.  Colton,  31  Iowa,  16 ;  Melchoir  v. 
McCarty,  31  Wis.  252,  11  Am.  Rep.  605.  See  Winchell  v.  Gary,  115  Mass.  560, 
15  Am.  Rep.  151.  Contra,  Bontelle  v.  Melendy,  19  N.  H.  196,  49  Am.  Dec. 
152;  Kountz  v.  Price,  40  Miss.  341.  See  "Sunday,"  Dec^  Dig.  {Key-No.)  § 
15;  Cent.  Dig.  §  46. 

90  Bradley  v.  Rea,  14  Allen  (Mass.)  20:  Id.,  103  Mass.  188,  4  Am.  Rep. 
324 ;  Hopkins  v.  Stefan,  77  Wis.  45,  45  N.  W.  676 ;  Flynn  v.  Columbus  Club, 
21  R.  I.  534,  45  AU.  551 ;  Bollin  v.  Hooper,  86  Mich.  287,  86  N.  W.  795.  The 
deliyery  must  be  accompanied  by  circumstances  showing  new  contract.  As- 
pell  V.  Hosbein,  98  Mich.  117,  57  N.  W.  27.  Defendant,  who  was  indebted  to 
plaintiff,  agreed  on  Sunday  to  furnish  a  laborer  on  Monday  to  help  plaintiff's 
son  thresh,  on  plaintiff's  account,  which  he  did,  and  the  son  paid  plaintiff  a 
sum,  which  the  latter  placed  to  defendant's  credit.  Held,  that  the  transac- 
tion on  Monday  did  not  show  the  elements  of  a  contract  without  relying  on 
the  Sunday  transaction,  and  hence  was  not  sufficient  to  take  the  account  out 
of  the  statute  of  limitations.  Pillen  v.  Ericksou,  125  Mich.  68,  83  N.  W.  1023. 
See  "Sunday;'  Dec.  Dig.   (Key-No.)   §  15;    Cent.  Dig.  §  ^6. 

7  0  HANDY  V.  ST.  PAUL  GLOBE  PUB.  CO.,  41  Minn.  188,  42  N.  W.  872, 
4  L.  R.  A.  466,  16  Am.  St.  Rep.  095,  Throckmorton  Gas.  Contracts,  227.  Sec 
"Sunday,"  Dec.  Dig.   (Key-No.)   §  15;    Cent.  Dig.  §  46. 

Ti  Benedict  v.  Batchelder,  24  Mich.  425,  9  Am.  Rep.  130.  See  "Sunday," 
Dec.  Dig.   (Key-No.)   §  15;    Cent.  Dig.  §  48. 


334  LEGALITY   OF   OBJECT  (Ch.  8 

clared  void.  In  many  states  the  contract  is  not  void,  but  the 
entire  interest  is  forfeited.  In  other  states  only  the  excess  of 
interest  charged  is  forfeited;  the  legal  amount  is  nevertheless 
recoverable. 

Four  requisites  are  necessary  to  constitute  an  usurious  trans- 
action:  (1)  A  loan  or  forbearance  of  money;  (2)  An  under- 
standing that  the  money  lent  is  to  be  returned;  (3)  The  pay- 
ment of,  or  agreement  to  pay,  a  greater  rate  of  interest  than  is 
allowed  by  law;  (4)  A  corrupt  intent  to  take  more  than  the 
legal  rate  for  the  use  of  the  sum  loaned.^* 

Same — Loan  of  Money 

In  the  first  place,  there  must  be  a  lending  and  borrowing  of  mon- 
ey. If  it  is  so  understood  by  the  parties,  no  shifting  or  contrivance 
for  the  purpose  of  disguising  the  real  nature  of  the  transaction  can 
avail  to  evade  the  statute ;  and,  on  the  other  hand,  if  it  was  not  a 
borrowing  and  lending,  it  cannot  be  brought  within  the  statute. '^^ 
The  parties  to  a  contract,  for  instance,  may  agree  on  a  sum  as  stip- 
ulated damages  in  case  of  breach,  and  it  may  be  recovered,  though  it 
exceeds  the  legal  interest  on  the  value  of  property  which  should 
have  been  paid.''*    So,  also,  on  a  loan  of  chattels,  the  agreed  com- 

T2  Lloyd  V.  Scott,  4  Pet.  205,  7  L.  Ed.  833;  Balfour  v.  Davis,  14  Or.  47, 
12  Pac.  89.  See  ''Usury:'  Dec.  Dig.  {Key-No.)  §§  1,  11-15;  Cent.  Dig.  §§  1, 
23-29. 

T8  Tyson  v.  Rlckard,  3  Har.  &  J.  (Md.)  109,  5  Am.  Dec.  424;  Price  v. 
Campbell,  2  Call  (Va.)  110,  1  Am.  Dec.  535;  Fer^son  v.  Sutphen,  3  Oilman 
(111.)  547;  Osborn  v.  McCowen,  25  111.  218;  Strutliers  v.  Drexel,  122  U.  S. 
487,  7  Sup.  Ct.  1293,  30  L.  Ed.  121G ;  Gaither  v.  Clarke,  67  Md.  18,  8  Atl.  740 ; 
Hartranft  v.  Uliliuger,  115  Pa.  270,  8  Atl.  244;  Lukens  v.  Hazlett,  37  Minn. 
441,  35  N.  W.  265;  Pope  v.  Marshall,  78  Ga.  635,  4  S.  E.  116;  Drury  v. 
Wolfe,  34  111.  App.  23 ;  Id..  134  111.  294,  25  N.  E.  626.  Money  paid  above  the 
legal  rate  for  the  forbearance  of  an  existing  debt  is  usury.  Hathaway  v. 
Hagan,  59  Vt.  75,  8  Atl.  678.  Charging  "banker's  commission."  Bowdoin  v. 
Hammond,  79  Md.  173,  28  Atl.  769.  An  agreement  by  which  a  party  lends 
bonds  and  the  borrower  agrees  to  pay  to  the  owner  the  interest  paid  by  the 
government,  and  6  per  cent,  in  addition,  is  not  a  contract  for  the  loan  of 
money.  Marshall  v.  Rice,  85  Tenn.  502,  3  S.  W.  177.  Loans  by  building  and 
loan  association.  Jackson  v.  Cassidy,  68  Tex.  282,  4  S.  W.  541 ;  Tilley  v.  As- 
sociation (C.  C.)  52  Fed.  618;  Succession  of  Latchford,  42  La.  Ann.  529,  7 
South.  628;  Hensel  v.  Association,  85  Tex.  215,  20  S.  W.  116;  International 
Eldg.  &  Loan  Ass'n  v.  Abbott,  85  Tex.  220,  20  S.  W.  118;  Sullivan  v.  Asso- 
ciation, 70  Miss.  94,  12  South.  590;  Reeve  v.  Association,  56  Ark.  335,  19  S. 
W.  917,  18  L.  R.  A.  129;  Iowa  Savings  &  Loan  Ass'n  v.  Heidt,  107  Iowa, 
297,  77  N.  W.  1050,  43  L.  R.  A.  GS9,  70  Am.  St  Rep.  197;  Washington  Nat. 
Building,  Loan  &  Investment  Ass'n  v.  Stanley,  38  Or.  319,  63  Pac.  489,  58 
L.  R.  A.  816,  84  Am.  St.  Rep.  793.  See  "t/sM/i/,"  Dec.  Dig.  {Key-No.)  §  13; 
Cent.  Dig.  §  25. 

T4Tardeveau  v.  Smith's  Ex'r,  Hardin   (Ky.)   175,  3  Am.  Dec.  727;    Black- 


§    153)  AGREEMENTS    IN    VIOLATION    OF   POSITIVE    LAW  335 

pensation  may  be  recovered,  though  it  exceeds  what  would  be  the 
legal  rate  of  interest  on  the  value  of  the  chattel.''*  In  neither  of 
these  cases  is  there  a  loan  or  forbearance  of  money."  As  already 
said,  however,  the  contract  must  be  made  bona  fide,  and  not  as  a 
cover  for  a  loan.'^^ 

A  negotiable  note  which  has  been  executed  and  delivered  is  treat- 
ed as  a  chattel,  and  it  is  not  usury  for  a  third  person  to  buy  it  from 
the  holder  at  a  discount  greater  than  the  legal  rate  of  interest.'^*  An 
exception  is  made  to  this  rule  in  some  jurisdictions  if  the  transferror 
indorses  the  note  and  thus  makes  himself  conditionally  liable  for  its 
payment  ;''*  but  on  principle  and  by  the  weight  of  authority  such 
indorsement  is  regarded  as  a  warranty  of  title  and  the  transaction 

bum  V.  Hayes,  59  Ark.  366,  27  S,  W.  240.  See  "Usury,"  Dec.  Dig.  (Key-No.) 
§  IS;   Cent.  Dig.  %  25. 

75  Hall  V.  Haggart,  17  Wend.  (N.  Y.)  2S0;  Bull  v.  Rice,  5  N.  Y.  315.  See 
"Usury;'  Dec.  Dig.  (Key-No.)  §  13;    Cent.  Dig.  §  25. 

7  6  See,  also,  Truby  v.  Mosgrove,  118  Pa.  89,  11  Atl.  806,  4  Am.  St  Rep. 
575;  Appeal  of  Trine  (Pa.)  13  Atl.  7G5 ;  Union  Cent.  Life  Ins.  Co.  v.  Hil- 
liard,  63  Ohio  St.  478,  59  N.  E.  231,  53  L.  R.  A.  462,  81  Am.  St.  Rep.  644.  If 
a  person  sells  chattels  or  land  on  credit,  the  fact  that  he  charged  a  larger 
sum  than  he  would  have  charged  if  he  had  sold  for  cash  does  not  render  the 
transaction  usurious.  Bull  v.  Rice,  5  N.  Y.  315;  Brooks  v.  Avery,  4  N.  Y. 
225;  Gilmore  v.  Ferguson,  28  Iowa,  220;  Swayne  v.  Riddle,  37  W.  Va.  291, 
16  S.  E.  512;  Brown  v.  Gardner,  4  Lea  (Tenn.)  145;  Graeme  v.  Adams,  23 
Grat.  (Va.)  225,  14  Am.  Rep.  130;  Wheeler  v.  Marchbanks,  32  S.  C.  594,  10 
S.  E.  1011 ;  Bass  v.  Patterson,  08  "Miss.  310,  8  South.  849,  24  Am.  St.  Rep. 
279.  Contra,  Fisher  v.  Hoover,  3  Tex.  Civ.  App.  81,  21  S.  W.  930.  Where  on 
a  purchase  of  land  the  vendee  agrees  to  pay,  as  part  of  the  price,  on  deferred 
payments  in  excess  of  the  legal  rate,  the  contract  is  not  usurious.  Askin  v. 
Lebus  (Ky.)  4  S.  W.  305;  Reger  v.  O'Neal,  33  W.  Va.  159,  10  S.  E.  375,  6 
L.  R.  A.  427;  Dykes  v.  Bottoms,  101  Ala.  390,  13  South.  582.  For  other 
cases  in  which  it  has  been  held  that  the  relation  of  borrower  and  lender  did 
not  exist,  see  Appeal  of  Donehoo  (Pa.)  15  Atl.  924;  Niebuhr  v.  Schreyer 
(Com.  PI.)  13  N.  Y.  Supp.  809;  McComb  v.  Association,  134  N.  Y.  598,  31 
N.  E.  613 ;  Duval  v.  Neal,  70  Miss.  288,  12  South.  145 ;  Eddy's  Ex'r  v.  North- 
up  (Ky.)  23  S.  W.  353.  Sale  or  loan.  Ellenbogen  v.  Griffey,  55  Ark.  268, 
18  S.  W.  126.     See  "Usury:'  Dec.  Dig.  (Key-No.)  §  13;    Cent.  Dig.  §  25. 

7T  Lloyd  v.  Scott,  4  Pet.  205,  7  L.  Ed.  833.  See  "Usury,"  Dec.  Dig.  (Key- 
No.)  §  13;   Cent.  Dig.  %  25. 

78  Lloyd  V.  Keach,  2  Conn.  175,  7  Am.  Dec.  256;  Nichols  v.  Fearson,  7  Pet. 
103,  8  L.  Ed.  623;  Munn  v.  Commission  Co.,  15  Johns.  (N.  Y.)  44,  8  Am.  Dec. 
219;  Cram  v.  Hendricks,  7  Wend.  (N.  Y.)  569;  Jackson  v.  Travis,  42  Minn. 
438,  44  N.  W.  316;  Holmes  v.  Bank,  53  Minn.  350,  55  N.  W.  555;  Clafliu  v. 
Boorum,  122  N.  Y.  385,  25  N.  E.  360;  Chase  Nat  Bank  v.  Faurot  72  Hun, 
373,  25  N.  Y.  Supp.  447;  Rodecker  v.  Littauor,  59  Fed.  857,  8  C.  C.  A.  320. 
See  "Usury,"  Dec.  Dig.   (Key-No.)  §  26;    Cent.  Dig.  §§  57,  5S,  62. 

7»  Bank  of  Radford  v.  Kirby,  100  Va.  498,  42  S.  E.  303;  Sedbury  v.  Duffy, 
]."8  N.  C.  432,  74  S.  E.  355.  See  "Usury,"  Dec.  Dig.  (Key-No.)  §  26;  Cent. 
Dig.  §§  57,  58,  62. 


33G  LEGALITY   OF   OBJECT  (Ch.  8 

as  a  sale  rather  than  a  loan.""  If  the  note  was  originally  made  for 
accommodation,  and  the  first  person  giving  value  for  it  takes  it  at  a 
rate  of  discount  greater  than  the  legal  rate  and  with  knowledge  that 
it  is  accommodation  paper,  this  constitutes  usury,  for  it  is  a  mere 
loan,  and  not  the  sale  of  a  subsisting  instrument;  *^  and  some  courts 
have  held  such  transactions  usurious,  even  when  the  transferee  of 
the  note  takes  it  without  knowledge  of  its  accommodation  charac- 
ter; ®^  but  by  the  better  opinion  this  is  not  usury,  for  there  is  no  in- 
tention to  lend,  but  only  an  intention  to  buy  an  instrument  believ- 
ed to  be  already  valid  and  subsisting.*^ 

The  sale  below  par  of  the  bonds  of  a  corporation  bearing  the  high- 
est legal  rate  of  interest  is  in  reality  a  borrowing  of  money  by  the 
corporation  at  a  higher  rate  than  that  prescribed  by  law,  and  in  the 
absence  of  a  special  statute  relating  to  corporations  such  transac- 
tions have  usually  been  held  usurious.**  By  statutes  in  some  states, 
however,  corporations  are  given  the  power  to  borrow  money  by  the 
sale  of  bonds  at  a  rate  of  interest  higher  than  the  legal  rate  pre- 
scribed for  private  persons ;  "  and  in  other  jurisdictions  it  is  held 
that  such  sales  are  not  usurious  because  by  common  commercial 
custom  corporate  bonds  are  regarded  as  chattels  and  their  issue  to  a 
purchaser  is  treated  as  a  sale  of  a  subsisting  security  rather  than 
a  borrowing  of  money.*® 
Same — Principal  Absolutely  Repayable 

A  loan  being  essential  to  usury,  the  contract  must  contemplate 
the  absolute  repayment  of  the  principal.     Thus,  where  a  loan  is 

8  0  Becker's  Investment  Agency  v.  Rea,  63  Minn.  459.  65  N.  W.  928  (stating 
different  views) ;  Durant  v.  Banta,  27  N.  J.  Law,  624.  See  "Usury,"  Dec. 
Dig.  (Key-No.)  §  26;    Cent.  Dig.  §§  57,  58,  62. 

81  Richardson  v.  Scobee,  10  B.  Mon.  (Ky.)  12;  Newell  v.  Doty,  33  N.  Y. 
83.     See  "Usury,"  Dec.  Dig.   {Key-No.)  §  26;   Cent.  Dig.  §§  57,  58,  62. 

8  2  Sylvester  v.  Swan,  5  Allen  (Mass.)  134,  81  Am.  Dec.  734;  Claflin  v. 
Boorum,  122  N.  T.  385,  25  N.  E.  360.  See  "Usury,"  Dec.  Dig.  (Key-No.)  { 
26;    Cent.  Dig.  §§  57,  58,  62. 

8  3  Dickerman  v.  Day,  31  Iowa,  444,  7  Am.  Rep.  156;  Sherman  v.  Black- 
man,  24  111.  345;  Law's  Ex'rs  v.  Sutherland,  5  Grat.  (Va.)  357;  Holmes  v. 
State  Bank  of  Duluth,  53  Minn.  350,  55  N.  W.  555.  See  "Usury,"  Dec.  Dig. 
(Key-No.)  §  26;  Cent.  Dig.  §§  57,  58,  62. 

84  Danville  v.  Sutherlin,  20  Grat  (Va.)  555;  Geo.  N.  Fletcher  &  Sons  v. 
Alpena  Circuit  Judge,  136  Mich.  511,  99  N.  W.  748;  Houghteling  v.  Lumber 
Co.,  165  Mich.  498,  131  N.  W.  109,  35  L.  R.  A.  (N.  S.)  1106.  See  "Usury," 
Dec.  Dig.   (Key-No.)  §  26;  Cent.  Dig.  §§  57,  58,  62. 

86  Gamble  v.  Queens  County  Water  Co.,  123  N.  Y.  91,  25  N.  E.  201,  9  L.  R 
A.  527;  Clearwater  County  State  Bank  v.  Bagley-Ogema  Telephone  Co.,  116 
Minn.  4,  133  N.  W,  91,  36  L.  R.  A.  (N.  S.)  1132,  Ann.  Cas.  1913A,  622.  See 
"Usury,"  Dec.  Dig.  (Key-No.)  §§  25,  26;   Cent.  Dig.  §§  55-62. 

86  Memphis  v.  Bethel  (Tenn.)  17  S.  W.  191;  Griffith  v.  Burden,  35  Iowa, 
143.     See  "Usury,"  Dec  Dig.   (Key-No.)   §§  25,  26;    Cent.  Dig.  §§  55-62. 


§    153)  AGREEMENTS   IN    VIOLATION    OF   POSITIVE   LAW  337 

made,  to  be  returned  at  a  fixed  day,  with  more  than  the  legal  rate  of 
interest,  depending  on  a  casualty  which  hazards  both  principal  and 
interest,  the  contract  is  not  usurious;  but  where  the  interest,  only, 
is  hazarded,  it  is  usury.'^ 
Same — Contract  for  More  Than  Legal  Rate  of  Interest 

The  interest  paid  or  agreed  to  be  paid  must  be  at  a  rate  higher 
than  the  legal  rate.  Thus,  if  a  person  agrees  to  pay  a  specific  sum, 
exceeding  the  lawful  interest,  provided  he  does  not  pay  the  principal 
by  a  day  certain,  it  is  not  usury,  since  by  a  punctual  payment  of  the 
principal  he  may  avoid  the  payment  of  the  sum  stated,  which  is  con- 
sidered as  a  penalty.®* 

As  to  whether  it  is  usury  to  charge  compound  interest — that  is, 
interest  upon  overdue  interest — the  decisions  are  conflicting,  but  ac- 
cording to  the  weight  of  authority  it  is  not  so  regarded ;  but  interest 
cannot  be  charged  on  interest  not  due.**    It  is  not  usury  to  provide 

8  7  Lloyd  V.  Scott,  4  Pet.  205,  7  L.  Ed.  83.3;  Truby  v.  Mosgrove,  118  Pa.  89, 
11  Atl.  806,  4  Am.  St  Rep.  575 ;  Thorndike  v.  Stone.  11  Pick.  (Mass.)  183 ; 
Wilson  V.  Kilburn,  1  J.  J.  Marsh.  (Ky.)  494;  Spencer  v.  Tilden,  5  Cow.  (N. 
Y.)  144;  Heist  v.  Blaisdell,  198  Pa.  377,  48  Atl.  259.  See  "Usury;'  Dec.  Dig. 
(Key-No.)  §§  37-41;    Cent.  Dig.  §§  02-95. 

8  8  Lloyd  V.  Scott,  4  Pet.  205,  7  L.  Ed.  833 ;  BLAKE  v.  YOUNT,  42  Wash. 
101,  84  Pac.  625,  114  Am.  St  Rep.  106,  7  Ann.  Cas.  487,  Throckmorton  Cas. 
Contracts.  230;  Gambril  v.  Doe,  8  Blackf.  (Ind.)  140,  44  Am.  Dec.  760;  Fish- 
er V.  Anderson,  25  Iowa,  28,  95  Am.  Dec.  761 ;  Righter  v.  Warehouse  Co.,  99 
Pa.  289;  McNairy  v.  Bell,  1  Yerg.  (Tenn.)  502,  24  Am.  Dec.  454;  Walker  v. 
Abt,  83  111.  226 ;  Ramsey  v.  Morrison,  39  N.  J.  Law,  591 ;  Conrad  v.  Gibbon, 
29  Iowa,  120 ;  Hackenberry  v.  Shaw,  11  Ind.  392 ;  Rogers  v.  Sample,  33  Miss. 
310,  69  Am.  Dec.  349.  But  see  Carroll  Co.  Sav.  Bank  v.  Strother,  28  S.  C. 
504,  6  S.  E.  313;  Connecticut  Mut  Life  Ins.  Co.  v.  WesterhoEf,  58  Neb.  379, 
78  N.  W.  724,  79  N.  W.  731.  76  Am.  St  Rep.  101;  Liuton  v.  Insurance  Co., 
104  Fed.  5S4,  44  C.  C.  A.  54.  -See  "Usury,"  Deo.  Dig.  {Key-No.)  §§  37-41; 
Cent.  Dig.  §§  92-95. 

80  BLAKE  V.  YOUNT,  42  Wash.  101,  84  Pac.  625,  114  Am.  St  Rep.  106,  7 
Ann.  Cas.  487,  Throckmorton  Cas.  Contracts,  230;  Stewart  v.  Petree,  55  N. 
Y.  621,  14  Am.  Rep.  352;  Culver  v.  Bigelow,  43  Vt  249;  Quimby  v.  Cook, 
10  Allen  (Mass.)  32;  Merck  v.  Mortgage  Co.,  79  Ga.  213.  7  S.  E.  265;  Austin 
V.  Bacon,  28  Wis.  416;  Taylor  v.  Iliestand,  46  Ohio  St  34.',  20  N.  E.  345; 
Gilmore  v.  Bissell,  124  111.  488,  16  N.  E.  925;  Brown  v.  Vandyke,  8  N.  J.  Eq. 
795.  55  Am.  Dec.  2.50;  Keiser  v.  Decker,  29  Neb.  92,  45  N.  W.  272:  Telford 
V.  Garrels,  132  111.  550,  24  N.  E.  573;  Hale  v.  Hale,  1  Cold.  (Tenn.)  233,  78 
Am.  Dec.  490;  Ginn  v.  Security  Co..  92  Ala.  13."),  8  South.  388;  Brown  v. 
Bank,  86  Iowa,  527,  53  N.  W.  410.  See,  for  distinctions.  Cox  v.  Brookshire, 
76  N.  C.  314 ;  Simpson  v.  Evans,  44  Minn.  419,  46  N.  W.  908 ;  Kimbrough  v. 
Lukins,  70  Ind.  373;  Drury  v.  Wolfe,  134  111.  294,  25  N.  E.  626;  Leonard  v. 
Patton,  106  111.  99;  Mathews  v.  Toogood,  23  Neb.  530,  37  N.  W.  265.  8  Am. 
St  Rep.  131  ;  Hochmark  v.  Richler,  16  Colo.  2(53,  26  Pac.  818;  Young  v.  Hill, 
67  N.  Y.  102,  23  Am.  Rep.  99;  Palm  v.  Fancher,  93  Miss.  785,  48  South.  SIS, 
33  L.  R.  A.  (N.  S.)  295.  In  some  jurisdictions,  however,  the  courts  have 
refused  to  allow  recovery  of  Interest  on  interest,  on  the  ground  that  it  sa- 
Clark  Cont.(3d  Ed.)— 22 


338  LEGALITY   OF   OBJECT  (Ch.  8 

for  payment  of  an  attorney's  fee  if  the  debt  has  to  be  collected  by 
suit;*"*  nor  to  require  payment  in  advance  of  the  highest  legal 
rate ;  '^  nor,  under  some  circumstances,  to  pay  a  broker  a  commis- 
sion, or  for  expenses,  for  procuring  the  loan,®^  provided,  as  in  other 

vored  of  usury,  and  was  contrary  to  the  policy  of  the  law.  See  Bowman  v. 
Neely,  151  lU.  37,  37  N.  E.  840;  Wilcox  v.  Howland,  23  Pick.  (Mass.)  167; 
Henry  v.  Flagg,  13  Mete.  (Mass.)  64;  Cox  v.  Smith,  1  Nev.  161,  90  Am.  Dec. 
476;  Young  v.  HUl,  67  N.  Y.  162,  23  Am.  Rep.  99.  See  "Usury,"  Dec.  Dig. 
(Key-No.)  §  ^9;    Cent.  Dig.  §§  103-106. 

8  0  Weatherby  v.  Smith,  30  Iowa,  131,  6  Am.  Rep.  663;  Dorsey  v.  Wolflf,  142 
111.  589,  32  N.  E.  495,  18  L.  R.  A.  428,  34  Am.  St  Rep.  99 ;  Williams  v.  Flow- 
ers, 90  Ala.  136,  7  South.  439,  24  Am.  St.  Rep.  772 ;  Merck  v.  Mortgage  Co., 
79  Ga.  213,  7  S.  E.  265;  Smith  v.  Silvers,  32  Ind.  321;  First  Nat  Bank  v. 
Canatsey,  34  Ind.  149;  National  Bank  of  Athens  v.  Danforth,  80  Ga.  55,  7 
S.  E.  546 ;  Shelton  v.  Aultman  &  Taylor  Co.,  82  Ala.  315,  8  South.  232 ;  Fow- 
ler V.  Trust  Co.,  141  U.  S.  411,  12  Sup.  Ct  8,  35  L.  Ed.  794.  Otherwise  by 
statute  in  some  states.  See  "Usury,"  Dec.  Dig.  (Key-No.)  §  62;  Cent.  Dig 
8  135. 

91  Parker  v.  Cousins,  2  Grat  (Va.)  372,  44  Am.  Dea  388;  Telford  v.  Gar 
rels,  132  111.  550,  24  N.  E.  573;  Meyer  v.  Muscatine,  1  Wall.  384,  17  L.  Ed 
564;  Vahlberg  v.  Keaton,  51  Ark.  534,  11  S.  W.  878,  4  L.  R.  A.  462,  14  Am 
St  Rep.  73;  Goodrich  v.  Reynolds,  31  111.  490,  83  Am.  Dec.  240;  Fowler  v 
Trust  Co.,  141  U.  S.  384,  12  Sup.  Ct  1,  35  L.  Ed.  786 ;  English  v.  Smock,  34 
Ind.  115,  7  Am.  Rep.  215;  Newell  v.  Bank,  12  Bush  (Ky.)  57;  Rose  v.  Mun 
ford,  36  Neb.  148,  54  N.  W.  129;  Hawks  v.  Weaver,  46  Barb.  (N.  Y.)  164 
Mackenzie  v.  Flannery,  90  Ga.  590,  16  S.  E.  710.  See  "Usury,"  Dec.  Dig 
(Key-No.)  §§  45,  1,6;    Cent.  Dig.  §§  98,  99. 

92  Suydam  v.  Westfall,  4  Hill  (N.  Y.)  211;  Matthews  v.  Coe,  70  N.  Y.  239, 
26  Am.  Rep.  583 ;  Merck  v.  Mortgage  Co.,  79  Ga.  213,  7  S.  E.  265 ;  Boardman 
V.  Taylor,  66  Ga.  638 ;  Haldeman  v.  Insurance  Co.,  120  111.  .390,  11  N.  E.  526 ; 
New  England  Mortgage  Security  Co.  v.  Gay  (C.  C.)  33  Fed.  636;  Thomas  v. 
Miller,  39  Minn.  339,  40  N.  W.  358 ;  Baird  v.  Millwood,  51  Ark.  548,  11  S,  W. 
881 ;  Cockle  v.  Flack,  93  U.  S.  344,  33  L.  Ed.  9i9 ;  Pass  v.  Security  Co.,  66 
Miss.  365,  6  South.  239 ;  Hughes  v.  Griswold,  82  Ga.  299,  9  S.  E.  1092 ;  Hall 
v.  Daggett,  6  Cow.  (N.  Y.)  653 ;  Nourse  v.  Prime,  7  Johns.  Ch.  (N.  Y.)  69,  11 
Am.  Dec.  403 ;  Telford  v.  Garrels,  132  111.  550,  24  N.  E.  573 ;  Ginn  v.  Security 
Co.,  92  Ala.  135,  8  South.  388;  White  v.  Dwyer,  31  N.  J.  Eq.  40;  Davis  v. 
Sloman,  27  Neb.  877,  44  N.  W.  41 ;  Weems  v.  Jones,  86  Ga.  760,  13  S.  E.  89. 
Even  the  lender,  it  has  been  held,  may  charge  for  extra  services  and  ex- 
penses, for,  to  constitute  usury,  the  charge  must  be  for  the  loan  or  forbear- 
ance. Atlanta  Mining  &  Rolling  Mill  Co.  v.  Gwyer,  48  Ga.  9;  Morton  v. 
Thurber,  85  N.  Y.  550;  Ammondson  v.  Ryan,  111  111.  506;  De  Forest  v. 
Strong,  8  Conn.  513;  Dayton  v.  Moore,  30  N.  J.  Eq.  543;  Daley  v.  Invest- 
ment Co.,  43  Minn.  517,  45  N.  W.  1100;  Swanstrom  v.  Balstad,  51  Minn.  276, 
53  N.  W.  648 ;  Iowa  Savings  &  Loan  Ass'n  v.  Heidt,  107  Iowa,  297,  77  N.  W. 
1050,  43  L.  R.  A.  689,  70  Am.  St  Rep.  197.  But  see  Jackson  v.  May,  28  111. 
App.  305.  But  if  the  lender  exacts  a  bonus  in  addition  to  interest  at  legal 
rate,  It  is  usury.  Fanning  v.  Dunham,  5  Johns.  Ch.  (N.  Y.)  122,  9  Am.  Dec 
283;  Hewitt  v.  Dement,  57  111.  500;  Walter  v.  Foutz,  52  Md.  147;  Harris 
V.  Wicks,  28  Wis.  198;  Stark  v.  Sperry,  6  Lea  (Tenn.)  411,  40  Am.  Rep.  47; 
Rowland  v.  Bull,  5  B.  Mon.   (Ky.)   146.     But  exacting  bonus  or  commission 


§    153)  AGREEMENTS    IN    VIOLATION    OF   POSITIVE    LAW  339 

cases,  it  is  not  a  cover  for  a  usurious  transaction,'*  It  has  been 
held  that  it  is  usury  to  delay  payment  of  the  money  loaned,  and  ex- 
act interest  for  the  full  time.'* 

Same — Unlazvful  Intent 

There  must  be  an  intention  to  charge  and  pay  the  illegal  rate."* 
Ignorance  of  the  law  will  not  protect  a  party  from  the  penalties  of 
usury  where  it  is  committed;  but  where  there  was  no  intention  to 
evade  the  law,  and  the  facts  which  would  otherwise  constitute  usury 
can  be  shown  to  be  the  result  of  mistake  or  accident,  no  penalty 

by  agent  as  condition  of  maldng  loan  at  legal  Interest  for  his  principal,  with- 
out knowledge  or  consent  of  the  latter,  does  not  constitute  usury  in  the  prin- 
cipal. Stillman  v.  Northrup,  109  N.  Y.  473,  17  N.  E.  379 ;  New  England  Mort- 
gage Security  Co.  v.  Townes  (Miss.)  1  South.  242;  Acheson  v.  Chase,  28 
Minn.  211,  9  N.  W.  734;  Ballinger  v.  Bourland,  87  111.  513,  29  Am.  Rep.  69; 
Boylston  v.  Bain,  90  111,  283 ;  Williams  v.  Bryan,  68  Tex.  593,  5  S,  W.  401 ; 
Lane  v.  Insurance  Co.,  46  N.  J.  Eq.  316,  19  Atl.  617,  618;  May  v.  Flint,  54 
Ark.  573,  16  S.  W.  575;  Boardman  v.  Taylor,  66  Ga.  638;  Ammerman  v. 
Ross,  84  Iowa,  3.59,  51  N.  W,  6;  Dryfus  v.  Burnes  (C,  C.)  53  Fed.  410.  Not 
even  where  agent  is  general  agent  of  lender  to  loan  money,  if  illegal  exac- 
tion is  solely  for  agent's  benefit,  and  without  knowledge  or  sanction  of  len- 
der, and  he  in  no  way  ratifies  it.  Stein  v,  Swensen,  44  Minn.  218,  46  N.  W. 
360.  But  see  Kemmitt  v.  Adamson,  44  Minn.  121,  46  N.  W.  327.  If  the  prin- 
cipal knows  of  exaction,  contract  is  usurious.  Banks  v.  Flint,  54  Ark.  40,  14 
S.  W.  7G9,  16  S.  W.  477,  10  L.  R.  A.  459 ;  BUven  v.  Lydecker,  130  N.  Y.  102, 
28  N.  E.  625 ;  Payne  v.  Newcomb,  100  111.  611,  39  Am.  Rep.  69.  Payment  to 
attorney  for  examining  title.,  Goodwin  v.  Bishop,  145  111.  421,  34  N.  E.  47. 
Bonus  paid  by  borrower  to  his  own  agent  for  procuring  loan  is  no  part  ol! 
sum  paid  for  loan.  Dryfus  v.  Burnes  (C.  C.)  53  Fed.  410;  Goodwin  v.  Bish- 
op, 145  111.  421,  34  N.  E.  47;  Grieser  v.  Hall,  56  Minn.  155,  57  N,  W.  462.  But 
see,  contra,  where  lender  knew  of  payment.  Brown  v.  Brown,  38  S.  C.  173, 
17  S.  E.  452.  And  see  Holt  v.  Kirby,  57  Ark.  251,  21  S.  W.  432.  See  "Usu- 
ry;' Dec.  Dig.  (Key-No.)  §§  55-57;    Cent.  Dig.  §§  119-129. 

83  Sherwood  v.  Roundtree  (C.  C.)  32  Fed.  113;  Pfenning  v.  Scholer,  43  N. 
J.  Eq.  15,  10  Atl.  833 ;  Sanford  v.  Kane,  133  111.  199,  24  N.  E.  414,  8  L.  R.  A. 
724,  23  Am.  St.  Rep.  602.  See  "Usury,"  Dec.  Dig.  {Key-No.)  §§  55-57;  Cent. 
Dig.  §§  119-129. 

8  4  Barr's  Adm'x  v.  African  M.  E.  Church  (N.  J.  Eq.)  10  Atl.  287.  Cf.  Daley 
V.  Investment  Co.,  43  Minn.  517,  45  N.  W.  1100;  Rose  v.  Munford,  36  Neb. 
148,  54  N.  W.  129.     See  "Usury,'''  Dec.  Dig.   (Keg-No.)  §  43;    Cent.  Dig.  §  57. 

8 s  Tyson  v.  Rickard,  3  Har.  &  J.  (Md.)  109,  5  Am.  Dec,  424;  Bevier  v. 
Covell,  87  N.  Y,  50;  Gibson  v,  Stearns,  3  N.  II.  185;  Smythe  v.  Allen,  67 
Miss.  146,  6  South.  627;  Bearce  v.  Bartsow,  9  Mass.  45,  6  Am.  Dec.  25; 
Brown  v.  Bank,  80  Iowa,  527,  53  N.  W.  410;  Lloyd  v.  Scott,  4  Pet.  205,  7 
L.  Ed.  833;  Price  v.  Campbell,  2  Call  (Va.)  110,  1  Am.  Dec.  535;  McFarland 
V.  Bank,  4  Ark.  44,  37  Am,  Dec.  761 ;  Henry  v,  Sansom,  2  Tex.  Civ.  App.  150, 
21  S.  W.  69 ;  McElfatrick  v.  Hicks,  21  Pa.  402.  A  conscious  purpose  to  com- 
mit usury  is  not  necessary.  "If  they  Intended  what  amounts  to  usury,  then 
In  legal  effect  they  Intended  usury."  In  re  Fishel,  Nessler  &  Co.  (D.  C.)  192 
Fed.  412,  and  note.  See  "Usury,"  Deo.  Dig.  {Key-No.)  §  12;  Cent  Dig  U 
23,  24,  146. 


340  LEGALITY   OF  OBJECT  (Ch.  8 

attaches."  Thus,  if  a  contract  reserves  excessive  interest  merely 
because  of  a  mistaken  calculation,  it  is  not  for  that  reason  usurious. 
A  note  given  between  the  original  parties  for  a  balance  due  on 
previous  notes  which  were  usurious,  or  in  renewal  of  usurious  notes, 
is  itself  tainted  with  usury;  *''  but  a  renewal  note  given  to  a  subse- 
quent bona  fide  holder  of  the  original  note  is  not  usurious,®'  nor 
is  a  note  given  to  a  third  party  for  money  to  be  applied  in  payment 
of  other  notes  which  were  usurious.*' 

Same — Effect  of  National  Banking  Act 

By  the  national  banking  act,  national  banks  are  authorized  to 
exact  interest  at  the  rate  permitted  to  individuals  or  to  state  banks 
of  issue  in  the  state  in  which  they  are  located;  and  where  no  rate 
is  fixed  by  state  laws  they  may  charge  at  the  rate  of  seven  per  cent.^ 
The  act  also  provides  that  the  penalty  for  the  charging  of  usurious 
interest  by  a  national  bank  shall  be  a  forfeiture  of  the  entire  inter- 
est, and  that  if  the  interest  has  been  paid  twice  the  amount  may  be 

»a  Lloyd  v.  Scott,  4  Pet.  205,  7  L.  Ed.  833.  See  "Usury,"  Dec.  Dig.  {Key- 
So.)   §  12;    Cent.  Dig.  §§  2S,  24,  U6. 

9T  Cottrell  V.  Southwick,  71  Iowa,  50,  32  N.  W.  22;  Exley  v.  Berryhill,  37 
Minu.  182,  33  N.  W.  567;  McDonald  v.  Aufdengarten,  41  Neb.  40,  59  N,  W. 
762;  Levey  v.  Allien,  72  Hun,  321,  25  N.  Y.  Supp.  352.  If,  however,  a  usuri- 
ous contract  is  mutually  abandoned  by  the  parties,  and  the  securities  can- 
celed or  destroyed,  so  that  they  may  not  become  the  foundation  of  an  action, 
and  the  borrower  then  makes  a  contract  to  pay  the  amount  actually  received 
by  him,  this  last  contract  will  not  be  tainted  with  the  original  usury.  Shel- 
don V.  Haxtun,  91  N.  Y.  125 ;  Levey  v.  Allien,  supra ;  Porter  v.  Jefferies,  40 
S.  C.  92.  18  S.  E.  229.  See  "Usury,"  Dec.  Dig.  {Key-No.)  §§  66,  67;  Cent. 
Dig.  §§  139-11,1. 

»8  Armstrong  v.  Middaugh,  74  Misc.  Rep.  45,  133  N.  T.  Supp.  647.  See 
"Usury,"  Dec.  Dig.    {Key-No.)   §§  66,  67;    Cent.  Dig.   §§  139-141. 

9»  Cottrell  V.  Southwick,  71  Iowa,  50,  32  N.  W.  22;  Vaught  v.  Rider,  83 
Va.  659,  3  S.  E.  293,  5  Am.  St.  Rep.  .305 ;  France  v.  Smith,  87  Iowa,  552,  54 
N.  W.  366.  Contra,  where  the  transaction  is  a  mere  cover  for  a  usurious 
loan.  Luckens  v.  Hazlett,  37  Minn.  441,  35  N.  W.  265.  See  "Usury,"  Dec. 
Dig.  {Key-No.)  §§  66.  67;   Cent.  Dig.  §§  139-1. ',1. 

1  Rev.  St.  U.  S.  (1872)  §§  5197,  5198  (Act  June  3,  1864,  c.  106,  §  30,  13  Stat 
108  [U.  S.  Comp.  St.  1901,  p.  3493])  ;  Farmers'  &  Mechanics'  Nat  Bank  v. 
Bearing,  91  U.  S.  29,  23  L.  Ed.  196.  In  New  York,  where  by  statute  the  ex- 
action of  usury  by  an  individual  makes  a  contract  void,  state  banks  and  pri- 
vate bauks  and  bankers  have  been  put  by  statute  upon  the  same  basis  as 
national  banks  and  subject  only  to  the  same  penalties.  If,  therefore,  a  note 
originally  between  individuals  is  void  as  to  them  because  of  usury,  it  is  nev- 
ertheless valid  and  enforceable  when  discounted  by  a  state  or  national  bank 
before  maturity  and  without  notice  of  the  usury.  Schlesiuger  v.  Gilhooly, 
189  N.  Y.  1,  81  N.  E.  619,  12  Ann.  Cas.  1138.  Contra,  if  the  bank  acquired 
the  Instrument  with  knowledge  of  the  usury.  Schlesinger  v.  Lehmaier,  191 
N.  Y.  69,  83  N.  E.  657.  16  L.  R.  A.  (N.  S.)  626,  123  Am.  St  Rep.  591.  See 
"Banks  and  Banking,"  Dec.  Dig.  {Key-No.)  §  270;   Cent.  Dig.  §§  1023-1053. 


§    153)  AGREEMENTS    IN    VIOLATION    OF   POSITIVE    LAW  341 

recovered.  This  act  governs  all  loans  by  national  banks,  to  the  ex- 
clusion of  state  laws,  and  such  banks  may  not  be  subjected  to  any 
penalties  for  usury  other  than  those  prescribed  by  the  act.^ 

Wagers  and  Gambling  Transactions 

A  "wager"  has  been  defined  as  a  contract  conditional  upon  an 
event  in  which  the  parties  have  no  interest  except  that  which  they 
create  by  the  wager;  ^  but  this  attempts  to  limit  the  term  to  con- 
tracts not  permitted  by  law,  and  is  not  broad  enough.  Parties  may 
make  a  wager  on  a  matter  in  which  they  are  interested.  It  is  more 
accurate  to  say  that  a  wager  is  a  promise  to  pay  money  or  transfer 
property  upon  the  determination  or  ascertainment  of  an  uncertain 
event  or  fact,  the  consideration  for  the  promise  being  either  a  pres- 
ent payment  or  transfer  by  the  other  party,  or  a  promise  to  do  so 
upon  the  event  or  fact  being  determined  or  ascertained  in  a  particu- 
lar way.*  The  term  is  often  applied  to  contracts  not  permitted  by 
law,  as  opposed  to  others  which,  though  precisely  similar  in  their 
nature,  may  be  enforced,  and  this  has  resulted  in  some  confusion. 

A  wager  may  be  what  we  understand  by  a  "bet" — that  is,  a  purely 
gambling  transaction — or  it  may  be  directed  to  commercial  objects. 
A  man  who  bets  on  the  result  of  a  horse  race  makes  a  wagering  con- 
tract; but  so  does  a  man  who  takes  out  a  policy  of  insurance,  for 
he  bets  on  the  safety  of  the  property  insured,  or  on  the  duration  of 

2  Farmers'  &  Mechanics'  Nat.  Bank  v.  Bearing,  91  U.  S.  29,  23  L.  Ed.  196. 
See  "Banks  and  Banking,"  Dec.  Dig.  (Key-No.)  §  270;  Cent.  Dig.  §§  1023- 
105S. 

3  Leake,  Cont  377.  By  the  terras  of  a  note,  given  in  part  payment  of  land, 
defendant  promised  to  pay  .$900  if  cotton  should  rise  to  8  cents  by  a  certain 
date,  and,  if  not,  to  pay  $500.  It  was  held  that  the  agreement  was  not  a 
wager  on  the  price  of  cotton,  "for  the  parties  had  an  interest  in  the  contin- 
gency. The  defendant  purchased  the  land  at  the  lowest  price,  uncondition- 
ally, but  contracted  to  pay  a  larger  sum  if  the  value  should  be  enhanced  by 
the  increased  value  of  its  product"  Ferguson  v.  Coleman,  3  Rich.  (S.  C.)  99, 
4.0  Am.  Dec  761.  A  contract  by  which  a  party  purchases  50  bushels  of  "Bo- 
hemian oats"  at  $10  a  bushel,  and  the  seller  agrees  to  sell  for  him  the  next 
year  100  bushels  at  $10  a  bushel,  has  been  held  not  to  be  a  gambling  con- 
tract. Shipley  v.  Reasoner,  80  Iowa,  54S,  45  N.  W.  1077;  Matson  v.  Blos- 
som, 50  Hun,  600,  2  N.  Y.  Supp.  5ol.  Contra,  S/chmueckle  v.  Waters,  125  Tnd. 
265,  25  N.  E.  281.  Such  contracts,  however,  are  illegal,  since  they  cannot  be 
performed  without  defrauding  some  one.  Hanks  v.  Brown,  79  Iowa,  .560,  44 
N.  W.  811 ;  Merrill  v.  Packer.  80  Iowa,  542,  45  N.  W.  1076.  Contra,  Matson 
V.  Blossom,  supra.  For  similar  contract,  illegal  because  tending  to  defraud, 
see  Hubbard  v.  Freiburger,  133  Mich.  139,  94  N.  W.  727.  See  "Oaming;'  Dec. 
Dig.   (Ken-No.)  §  1;    Cent.  Dig.  §  1. 

*  Anson,  Cont.  (4th  Ed.)  173  ;  Hampden  v.  Walsh,  1  Q.  B.  Div.  180.  See 
"Qaming,"  Dec.  Dig.   (Key-No.)  %  1;    Cent.  Dig.  §  1. 


342  LEGALITY   OF   OBJECT  (Ch.  8 

the  life,  as  the  case  may  be.  In  the  latter  case  the  contract  may  be 
valid,  but  it  is  nevertheless  a  wager.° 

At  common  lav^  in  England,  over  a  century  ago,  wagers  on  al- 
most all  subjects  were  enforceable.  Gradually  the  courts,  finding 
that  frivolous  and  indecent  matters  were  sometimes  brought  before 
them  for  decision,  established  a  rule  that  a  wager  would  not  be  en- 
forced if  it  led  to  indecent  evidence,  or  was  calculated  to  injure  or 
pain  a  third  person,  and  in  some  cases  general  notions  of  public  pol- 
icy were  introduced  to  the  effect  that  any  wager  which  tempted  a 
man  to  offend  against  the  law  was  illegal.* 

Aside  from  these  cases,  wagers  continued  to  be  enforced  in  Eng- 
land, and  have  been  enforced  in  many  of  our  states.'^  In  ©ther 
states,  the  courts  have  held  all  wagering  contracts  on  matters  in 
which  the  parties  have  no  interest  illegal,  as  being  contrary  to  pub- 
lic policy." 

8  Anson,  Cont   (4th  Ed.)  174-176. 

«  See  Gilbert  v.  Sykes,  16  East,  150 ;  Hartley  v.  Rice,  10  East,  22 ;  Good  v. 
Elliott,  3  Term  R.  693 ;  Eltbam  v.  Kingsman,  1  Barn.  &  Aid.  6S3  ;  Atherford 
V.  Beard,  2  Term  R.  610;  Evans  v.  Jones,  5  Mees.  &  W.  77;  Ditchburn  v. 
Goldsmith,  4  Camp.  152.  And  see  Brogden  v.  Marriott,  3  Bing.  N.  C.  88; 
Ramloll  V.  Soojumnull,  6  Moore,  P.  C.  310;  Bunn  v.  Riker,  4  Johns.  (N.  Y.) 
426,  4  Am.  Dec.  292;  Rust  v.  Gott,  9  Cow.  (N.  Y.)  169,  18  Am.  Dec.  497; 
Hill  V.  Kidd,  43  Cal.  615;  Vischer  v.  Yates,  11  Johns.  (N.  Y.)  23.  See  "Gam- 
ing," Dec.  Dig.  (Kev-No.)  §§  1-5;   Cent.  Dig.  §§  1-15. 

T  Campbell  v.  Richardson,  10  Johns.  (N.  Y.)  400;  Good  v.  Elliott,  3  Term 
R.  693;  Clendining  v.  Church,  3  Caines  (N.  Y.)  141;  Winchester  v.  Nutter, 
52  N.  H.  507,  13  Am.  Rep.  93;  Dewees  v.  Miller,  5  Har.  (Del.)  347;  Stod- 
dard V.  Martin,  1  R.  I.  1,  19  Am.  Dec,  643;  Buchanan  v.  Insurance  Co.,  6 
Cow.  (N.  Y.)  318;  Wheeler  v.  Spencer,  15  Conn.  28;  Johnston  v.  Russell,  37 
Cal.  670;  Wroth  v.  Johnson,  4  Har.  &  McH.  (Md.)  284;  Cothran  v.  Ellis, 
125  111.  496.  16  N.  E.  646;  Trenton  Mut.  Life  &  Fire  Ins.  Co.  v.  Johnson,  24 
N.  J.  Law,  576;  Wootan  v.  Hasket,  1  Nott  &  McC.  (S.  C.)  180;  Kirkland  v, 
Randon,  8  Tex.  10,  58  Am.  Dec.  94.  Wager  as  to  shape  of  earth,  Hampden 
V.  Walsh,  1  Q.  B.  Div.  189 ;  as  to  weight  of  hog,  Mulford  v.  Bowen,  9  N.  J. 
Law,  315 ;  as  to  result  of  past  election  in  another  state,  Smith"  v.  Smith,  21 
111.  244,  74  Am.  Dec.  100;  as  to  time  within  which  railroad  would  be  com- 
pleted, Beadles  v.  Bless,  27  111.  320,  81  Am.  Dec.  231 ;  Johnson  v.  Fall,  6  Cal. 
359,  65  Am.  Dec.  518.  See  "Gaming,"  Dec.  Dig.  {Key-No.)  §§  1-5;  Cent. 
Dig.  §§  1-15. 

8  Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St. 
Rep.  159;  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L.  hd.  225; 
Amory  v,  Gilman,  2  Mass.  1;  Love  v.  Harvey,  114  Mass.  80;  Perkins  v. 
Eaton,  3  N.  H.  152;  West  v.  Holmes,  26  Vt.  530;  Winchester  v.  Nutter,  52 
N.  H.  507,  13  Am.  Rep.  93;  Wheeler  v.  Spencer,  15  Conn.  28;  Lewis  v.  Lit- 
tlefield,  15  Me.  233;  Stoddard  v.  Martin,  1  R.  I.  1,  19  Am.  Dec.  643;  Col- 
lamer  V.  Day,  2  Vt  144;  Edgell  v.  McLaughlin,  6  Whart  (Pa.)  176,  36  Am. 
Dec.  214 ;  Thomas  v.  Cronise,  16  Ohio,  54 ;  Lucas  v.  Harper,  24  Ohio  St.  32S ; 
Bernard  v.  Taylor,  23  Or.  416,  31  Pac.  908,  18  L.  R.  A.  859,  37  Am.  St.  Rep. 
693;    Rice  r.  Gist,  1  Strob.  (S.  C.)  82;    Wilkinson  v.  Tousley,  16  Minn.  291> 


§    153)  AGREEMENTS   IN    VIOLATION    OF    POSITIVE    LAW  343 

There  are  now,  both  in  England  °  and  in  this  country,  statutes 
covering  the  subject.  There  is  so  much  difference  in  the  statutes 
of  the  different  states  that  it  would  be  impracticable  to  attempt  to 
give  them.  It  is  sufficient  to  say  that  in  almost  all  the  states,  if  not 
in  all,  the  statutes  make  all  gambling  contracts  either  void,  or  both 
illegal  and  void. 

Same — Offer  of  Premium  or  Reward 

Neither  under  the  common  law  nor  under  the  statutes  against 
gaming,  betting,  and  wagers  is  the  bona  fide  offer  of  premiums  or 
purses  on  horse  races  or  other  legitimate  competitions  illegal,  and  it 
is  immaterial  that  the  competitors  are  required  to  pay  an  entrance 
fee  before  they  are  allowed  to  compete,  and  that  these  fees  go  to 
make  up  in  part  the  premium  or  purse  offered.^" 

Same — Contracts  of  Insurance 

At  common  law,  in  England,  contracts  of  insurance,  like  other 
wagers,  were  valid  though  the  assured  had  no  interest  whatever  in 
the  property  or  the  life  insured;  ^^  and  the  English  doctrine,  as  we 
have  seen,  has  been  recognized  in  a  few  of  our  states.^*  In  most 
of  our  states,  however,  the  doctrine  has  been  repudiated,  and  it 
has  been  held,  independently  of  any  statute,  that  contracts  of  in- 
surance with  a  person  who  has  no  interest  in  the  property  or  life 
are  mere  gambling  transactions,  and  are  void.^'     The  subject  is 

(Gil.  263),  10  Am.  Eep.  139;  Eldred  v.  Malloy,  2  Colo.  320,  25  Am.  Rep.  752; 
Pabst  Brewing  Co.  v.  Liston,  80  Minn.  473,  83  N.  W.  448,  81  Am.  St  Rep.  275. 
See  "Ga/imng,"  Dec.  Dig.   {Key-No.)   §§  1-5;    Cent.  Dig.  §§  1-15. 

»  Anson,  Cont.  (8th  Ed.)  189  et  seq.  Some  of  the  earlier  English  statutes 
have  in  this  country  been  regarded  as  part  of  the  common  law.  Emerson  v. 
Townsend,  73  Md.  224,  20  Atl.  984,  See  "Gatning,"  Dec.  Dig.  {Key-No.)  §§ 
1-5;   Cent.  Dig.  §§  1-15. 

10  Porter  v.  Day,  71  Wis.  296,  37  N.  W.  259.  And  see  Harris  v.  White,  81 
N.  Y.  532;  Misner  v.  Knapp,  13  Or.  135,  9  Pac.  65,  57  Am.  Rep.  6;  Delier 
V,  Society,  57  Iowa,  481,  10  N.  W.  872;  Alvord  v.  Smith,  63  Ind.  58;  People 
V.  Fallon,  152  N.  Y.  12,  46  N.  E.  296,  37  L.  R.  A.  227,  57  Am.  St  Rep.  492; 
Hankins  v.  Ottinger,  115  Cal.  454,  47  Pac.  254,  40  L.  R.  A.  76;  Wilkinson  v. 
Stitt  175  Mass.  581,  50  N.  E.  830.  In  some  states  the  offer  of  such  rewards 
or  premiums  is  prohibited  in  certain  cases.  Bronson  Agricultural  &  B.  Ass'n 
V.  Ramsdell,  24  Mich.  441.  It  is  otherwise  where  the  offer  of  a  premium  is  a 
mere  subterfuge  to  cover  a  bet;  as  where  the  owners  of  horses  make  up  a 
purse,  and  put  it  in  the  hands  of  a  third  person  to  pay  to  the  one  of  them 
whose  horse  shall  win.  Gibbons  v.  Gouverneur,  1  Deuio  (N.  Y.)  170.  See 
"Gaming,"  Dec.  Dig.  {Key-No.)  §  7;    Cent.  Dig.  §  16. 

11  Kulen  Kemp  v.  Vigne,  1  Term  R.  304 ;  Dean  v.  Dicker,  2  Strange,  1250. 
See  "Insurance,"  Dec.  Dig.   {Key-No.)   §  119;    Cent.  Dig.  §  165. 

12  Clendining  v.  Church,  3  Caines  (N.  Y.)  141;  Buchanan  v.  Insurance  Co., 
6  Cow.  (N.  Y.)  318;  Trenton  Mut  Life  &  Fire  Ins.  Co.  v.  Johnson,  24  N.  J. 
Law,  570.     See  "Insurance,"  Dec.  Dig.  {Key-No.)  §  119;    Cent.  Dig.  §  165. 

18  Stevens  v.  Warren,  101  Mass.  564 ;    Warnock  v.  Davis,  104  U.  S.  775,  26 


344  LEGALITY   OF   ODJECT  (Ch.  8 

now  very  generally  dealt  with  by  statute  both  in  England  and  with 
us,  so  that  there  is  seldom  any  occasion  to  look  to  the  common  law. 
By  these  statutes,  any  contract  of  marine,  fire,  or  life  insurance  is 
declared  void  unless  the  assured  has  an  insurable  interest. 

The  question  as  to  what  amounts  to  an  insurable  interest  is  one 
more  peculiarly  for  a  work  on  insurance,  and  it  would  be  impracti- 
cable for  us  to  go  into  it.  In  the  case  of  marine  or  fire  insurance  it 
is  sufficient  to  say  that  if  a  person  has  any  interest  in  the  vessel, 
cargo,  or  other  property,  legal  or  equitable,  so  that  he  would  suf- 
fer a  loss  if  it  should  be  destroyed,  he  has  an  insurable  interest.^* 
In  the  case  of  life  insurance  it  has  been  said  that  "all  which  it  seems 
necessary  to  show  in  order  to  take  the  policy  out  of  the  objection  of 
being  a  wager  policy  is  that  the  insured  has  some  interest  in  the  life 
of  the  cestui  que  vie;  that  his  temporal  affairs,  his  just  hopes,  and 
well-grounded  expectations  of  support,  of  patronage,  and  advantage 
in  life  will  be  impaired;  $o  that  the  real  purpose  is  not  a  wager,, 
but  to  secure  such  advantages  supposed  to  depend  on  the  life  of  an- 
other." ^^ 

Sam  e — Futures 

An  agreement  for  the  sale  of  stocks,  grain,  or  any  other  commod- 
ity is  a  gambling  contract  where  the  parties  do  not  intend  an  actual 
delivery,  but  agree  that  at  the  time  fixed  for  delivery,  they  shall  set- 
tle by  one  of  them  paying  the  other  the  difference  between  the  price 
agreed  upon  and  the  market  price  at  the  time  of  delivery.  This  is 
a  mere  bet  or  speculation  on  the  rise  and  fall  of  the  price  of  the  ai*- 
ticle,  and  is  illegal,  not  only  under  the  statutes,  but  in  most  states 
even  independently  of  any  statute.^*    The  law  on  this  subject  was 

L.  Ed.  924  ;  Amory  v.  Oilman,  2  Mass.  1 ;  Loomls  v.  Insurance  Co.,  6  Gray 
(Mass.)  396 ;  Bersch  v.  Insurance  Co.,  28  Ind.  64 ;  Bevin  v.  Insurance  Co., 
23  Conn.  244 ;  Sawyer  v.  Mayhew,  51  Me.  398 ;  Sweeney  v.  Insurance  Co., 
20  Pa.  337;  Fowler  v.  Insurance  Co.,  26  N.  Y.  422;  ante,  p.  842.  See  "In- 
surance," Dec.  Dig.  (Key-Xo.)  §  119;   Cent.  Dig.  §  165. 

1*  Vance  on  Insurance,  107  et  seq. 

IB  Loomis  V.  Insurance  Co.,  6  Gray  (Mass.)  398;  Vance  on  Insurance,  129 
et  seq.     See  "Insurance,"  Dec.  Dig.   {Key-'So.)  §  110;    Cent.  Dig.  %  165. 

16  IN  RE  TAYLOR  &  CO.'S  ESTATE,  192  Pa.  304,  43  Atl.  973,  73  Am.  St. 
Rep.  812,  Throckmorton  Cas.  Contracts,  233 ;  Harvey  v.  Merrill,  150  Mass. 
1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St.  :^ep.  1.59;  Irwin  v.  Wllliar,  110 
U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225;  Gregory  v.  Wendell,  39  Mich.  337, 
33  Am.  Rep.  390;  Burt  v.  Meyer,  71  Md.  467,  18  Atl.  796;  Brua's  Appeal, 
55  Pa.  204;  Kingsbury  v.  Kirwan,  77  N.  Y.  612;  Whilc^^ides  v.  Hunt,  97  Ind. 
191,  49  Am.  Rep.  441 ;  Crawford  v.  Spencer,  92  Mo.  498,  4  S.  W.  713,  1  Am. 
St.  Rep.  745 ;  Everingham  v.  Meighan,  55  Wis.  354.  13  X.  W.  269 ;  White  v. 
Barber,  123  U.  S.  392,  8  Sup.  Ct.  221,  31  L.  Ed.  243;  Hatch  v.  Douglass,  48 
Conn.  116,  40  Am.  Rep.  154 ;  Dunn  v.  Bell,  85  Tenn.  581,  4  S.  W.  41 ;  Picker- 
ing V.  Cease,  79  HI.  328;    Flagg  v.  Gilpin,  17  R.  I.  10,  19  AO.  1084;    Lawton 


:§    153)  AGREEMENTS    IN    VIOLATION    OF   POSITIVE   LAW  345 

thus  stated  in  a  late  Massachusetts  case:  "If,  in  a  formal  contract 
for  the  purchase  and  sale  of  merchandise  to  be  delivered  in  the  fu- 
ture at  a  fixed  price,  it  is  actually  the  agreement  of  the  parties  that 
the  merchandise  shall  not  be  delivered  and  the  price'  paid,  but  that, 
when  the  stipulated  time  for  performance  arrives,  a  settlement  shall 
be  made  by  a  payment  in  money  of  the  difference  between  the  con- 
tract price  and  the  market  price  of  the  merchandise  at  that  time,  this 
agreement  makes  the  contract  a  wagering  contract.  If,  however,  it 
is  agreed  by  the  parties  that  the  contract  shall  be  performed  accord- 
ing to  its  terms  if  either  party  requires  it,  and  that  either  party  shall 
have  a  right  to  require  it,  the  contract  does  not  become  a  wagering 
contract  because  one  or  both  of  the  parties  intend,  when  the  time 
for  performance  arrives,  not  to  require  performance,  but  to  substi- 
tute therefor  a  settlement  by  the  payment  of  the  difference  between 
the  contract  price  and  the  market  price  at  that  time.  Such  an  in- 
tention is  immaterial,  except  so  far  as  it  is  made  a  part  of  the  con- 
tract, although  it  need  not  be  made  expressly  a  part  of  the  contract. 
To  constitute  a  wagering  contract,  it  is  sufficient,  whatever  may  be 
the  form  of  the  contract,  that  both  parties  understand  and  intend 
that  one  party  shall  not  be  bound  to  deliver  the  merchandise  and 
the  other  to  receive  it  and  to  pay  the  price,  but  that  a  settlement 
shall  be  made  by  the  payment  of  the  difference  in  prices."  ^^ 

T.  Blitch,  83  Ga.  663,  10  S.  E.  353 ;  Lester  v.  Buel,  49  Ohio  St.  240,  30  N.  E. 
821,  34  Am.  St.  Rep.  .556 ;  Mohr  v.  Miesen,  47  Minn.  228.  49  N.  W.  862 ;  Wag- 
ner V.  Hildebrand,  187  Pa.  136,  41  Atl.  34 ;  Johnston  v.  Miller,  67  Ark.  172,  53 
S.  W.  1052;  Counselman  v.  Reichart,  103  Iowa,  430,  72  N.  W.  490;  Jamie- 
son  V.  Wallace,  167  111.  388,  47  N.  E.  762,  59  Am.  St.  Rep.  302 ;  Ponder  v. 
Jerome  Hill  Cotton  Co.,  100  Fed.  373,  40  C.  C.  A.  416;  Clews  v.  Jamieson, 
96  Fed.  648,  38  C.  C.  A.  473 ;  Morris  v.  Western  Union  Telegraph  Co.,  94  Me. 
423,  47  Atl.  926 ;  Atwater  v.  Manville,  106  Wis.  64,  81  N.  W.  985 ;  Rogers  v. 
Marriott,  59  Neb.  759,  82  N.  W.  21.  Ana  see  cases  cited  post, » pp.  430,  431, 
notes  55,  57.  Such  transactions  are  not  regarded  as  contrary  to  public  policy 
in  England,  but  are  held  to  be  gaming  and  wagering  transactions  within  the 
meaning  of  the  statute  prohibiting  such  transactions.  Thacker  v.  Hardy,  4 
Q.  B.  Div.  685.  It  has  been  held,  however,  that  this  class  of  contracts  were 
not  gaming  contracts  within  the  meaning  of  statutes  avoiding  instruments  in 
the  hands  of  bona  fide  holders  if  given  on  a  gaming  consideration.  Shaw  v. 
Clark,  49  Mich.  3&4,  13  N.  W.  786,  43  Am.  Rep.  474;  Third  Nat.  Bank  v. 
Harrison  (C.  C.)  10  Fed.  243.  But  see,  contra,  Thacker  v.  Hardy,  4  Q.  B. 
Div.  685;  Cunningham  v.  Bank,  71  Ga.  400,  51  Am.  Rep.  266;  Grizewood  v. 
Blane,  11  C.  B.  526 ;  Lyons  v.  Hodgen,  90  Ky.  280,  13  S.  W.  1076.  That  they 
are  wagers  within  the  meaning  of  a  statute,  see  McGrew  v.  Produce  Ex- 
change, 85  Tenn.  572,  4  S.  W.  38,  4  Am.  St  Rep.  771.  See  "Qaming,"  Dec. 
Dig.   (Rev-No.)  §  12;    Cent.  Dig.  %  22. 

IT  Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St. 
Rep.  159.  And  see  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403 ;  Bailey  & 
Graham  v.  Phillips  (C.  C.)  159  Fed.  535;    Rodgers,  McCabe  &  Co.  v.  Bell,  1.58 


346  LEGALITY   OF   OBJECT  (Ch.  8 

This  intention  must  be  common  to  both  parties.  If  one  of  them 
intends  a  bona  fide  sale,  and  actual  delivery  if  it  shall  be  required, 
he  may  enforce  the  contract,  though  the  other  party  may  have  in- 
tended a  wager  on  future  prices,^'  The  fact  that  the  seller  has  not 
the  article  sold  at  the  time  of  the  contract  does  not  render  the  con- 
tract void.  It  is  valid  if  an  actual  delivery  is  intended,  though  he  is 
to  buy  the  article  in  the  market  at  the  time  of  delivery,  and  though 
a  margin  may  have  been  deposited  as  security.^* 

Lotteries 

In  England,  and  in  most,  if  not  all,  of  our  states,  lotteries  are  now 
prohibited  by  statute.  A  "lottery"  has  been  defined  as  "a  scheme 
for  the  distribution  of  property  by  chance,  among  persons  who  have 
paid  or  agreed  to  pay  a  valuable  consideration  for  the  chance,  wheth- 
er called  a  lottery,  raffle,  or  gift  enterprise,  or  by  some  other 
name."  *• 

N.  C.  378,  72  S.  B.  817.  But  if  the  circumstances  show  that  the  transaction 
was  a  speculation  only,  and  that  no  delivery  was  intended,  it  is  void,  not- 
withstanding a  rule  of  the  exchange  that  actual  delivery  may  be  exacted. 
Beadles  v.  McElrath,  85  Ky.  230,  3  S.  W.  152.  See  "Gaming;'  Dec.  Dig. 
(Key-No.)  §  12;   Cent.  Dig.  §  22. 

18  Pixley  v.  Boynton,  79  111.  351;  Whitesides  v.  Hunt,  97  Ind.  191,  49  Am. 
Rep.  441;  Bangs  v.  Hornick  (C.  C.)  30  Fed.  97;  Jones  v.  Shale,  34  Mo.  App. 
302 ;  Scanlon  v.  Warren,  169  111.  142,  48  N.  E.  410 ;  Donovan  v.  Daiber,  124 
Mich.  49,  82  N.  W.  848.  Otherwise  by  some  statutes.  Harvey  v.  Doty,  54 
S.  C.  382,  32  S.  E.  501.  So  of  the  contract  between  broker  and  principal. 
If  the  broker  is  privy  to  the  unlawful  intention  of  the  parties,  his  contract 
with  his  principal  is  illegal,  and  he  cannot  recover  his  commissions,  etc. ;  but 
if  he  is  not  privy  thereto,  his  contract  is  legal.  Irwin  v.  Williar,  110  U.  S. 
499,  4  Sup.  Ct.  160,  28  L.  Ed.  225 ;  Bibb  v.  Allen,  149  U.  S.  498,  13  Sup.  Ct. 
950,  37  L.  Ed.  819;  Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L.  B.  A. 
200,  15  Am.  St.  Rep.  159 ;  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403 ;  Mohr 
v.  Miesen,  47  Minn.  228,  49  N.  W.  862 ;  IN  RE  TAYLOR  &  CO.'S  ESTATE, 
192  Pa.  304,  43  Atl.  &Y3,  73  Am.  St.  Rep.  812,  Throckmorton  Cas.  Contracts, 
233.     See  "Oaming,"  Dec.  Dig.  (Key-No.)  §  12;   Cent.  Dig.  §  22. 

19  Riohter  v.  Poe,  109  Md.  20,  71  Atl.  420,  22  L.  R.  A.  (N.  S.)  174;  IN  RE 
TAYLOR  &  CO.'S  ESTATE,  192  Pa.  304,  43  Atl.  973,  73  Am.  St.  Rep.  812, 
Throckmorton  Cas.  Contracts,  233;  Story  v.  Solomon,  71  N.  Y.  420;  Apple- 
man  V.  Fisher,  34  Md.  540;  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160, 
28  L.  Ed.  225;  Bibb  v.  Allen,  149  U.  S.  481.  13  Sup.  Ct.  950,  37  L.  Ed.  819; 
Gregory  v.  Wattowa,  58  Iowa,  711,  12  N.  W.  726;  Cole  v.  Milmine,  88  III. 
349 ;  Wall  v.  Schneider,  59  Wis.  352,  18  N.  W.  443,  48  Am.  Rep.  520 ;  Woll- 
cott  V.  Heath,  78  111.  433;  Kahn  v.  Walton,  46  Ohio  St.  195,  20  N.  E.  203; 
Forsyth  Mfg.  Co.  v.  Castlen,  112  Ga.  199,  37  S.  E.  485,  81  Am.  St.  Rep.  28. 
Parol  evidence  is  always  admissible  to  show  what  was  the  real  intention. 
Clarke  v.  Foss,  7  Biss.  540,  Fed.  Cas.  No.  2,852;  Watte  v.  Wickersham,  27 
Neb.  457,  43  N.  W.  259;  Gaw  v.  Bennett,  153  Pa.  247,  25  Atl.  1114,  34  Am. 
St.  Rep.  699 ;  Hentz  v.  Jewell  (C.  C.)  20  Fed.  592.  See  "Gaming,"  Dec.  Dig. 
(Key-No.)  §  12;    Cent.  Dig.  §  22. 

2  0  New  York  Penal  Code,  §  323.     And  see  People  r.  Lovin,  179  N.  Y.  164, 


§    153)  AGREEMENTS    IN    VIOLATION    OF   POSITIVE    LAW  347 

In  an  English  case  the  proprietor  of  a  journal  had  advertised  a 
"missing  word  competition,"  the  scheme  of  which  was  that  persons 
should  guess  upon  the  word  omitted  in  a  published  paragraph,  ac- 
companying their  guess  by  a  fee,  the  money  so  received  to  be  dis- 
tributed among  the  successful  competitors.  The  proprietor,  after 
receiving  the  money,  refused  to  distribute  it,  and  suit  was  brought 
against  him  by  a  successful  competitor.  It  was  held  that  the  trans- 
action was  a  lottery,  as  the  distribution  was  to  take  place  by  chance, 
and  that  the  action  could  not  be  maintained. ^^  So  guessing  con- 
tests upon  the  number  of  votes  to  be  cast  at  on  election,^^  the  num- 
ber of  persons  to  be  admitted  to  a  fair,^*  the  number  of  beans  in  a 
jar,^*  or  upon  anything  else  where  it  is  a  mere  matter  of  chance  as 
to  which  competitor  will  submit  the  nearest  correct  estimate,  have 
been  held  to  be  lotteries.^"* 

A  scheme  or  contest  may  constitute  a  lottery  even  though  each 
person  participating  is  to  receive  some  consideration  for  the  money 
paid  by  him.^*    A  distribution,  however,  does  not  constitute  a  lot- 

71  N.  E.  753,  66  L.  R.  A.  601,  1  Ann.  Cas.  165;  Public  Clearing  House  v, 
Coyne,  194  U.  S.  497.  24  Sup.  Ct  789,  48  L.  Ed.  1092.  See  "Lotteries,"  Dec. 
Dig.  (Key-No.)  §§  3-8;   Cent.  Dig.  §§  3-8. 

21  Barclay  v.  Pearson,  [1S03]  2  Ch.  154.  And  see,  as  to  what  constitutes  a 
lottery,  Jackson  Steel  Nail  Co.  v.  Marks,  4  Ohio  Civ.  Ct.  R.  343;  Caminada 
V.  Hulton.  64  Law  T.  572;  gift  enterprises,  State  v.  Boneil,  42  La.  Ann.  1110, 
8  South.  298,  10  L.  R.  A.  60,  21  Am.  St.  Rep.  413 ;  Long  v.  State,  73  Md.  527, 
21  Atl.  683,  12  L.  R.  A.  89,  25  Am.  St  Rep.  606;  Id.,  74  Md.  565,  22  Atl.  4, 
12  L.  R.  A.  425,  28  Am.  St.  Rep.  268;  People  v,  Gillson,  109  N.  Y.  389,  17 
N.  E.  343,  4  Am.  St  Rep.  465;  merchant  tailor  clubs,  State  v.  Moren,  48 
Minn.  555,  51  N.  W.  618;  prizes  to  stimulate  trade,  Davenport  v.  City  of  Ot- 
tawa, 54  Kan.  711,  39  Pac.  708,  45  Am.  St  Rep.  303;  Lynch  v.  Roseuthal, 
144  Ind.  86,  42  N.  E.  1103,  31  L.  R.  A.  835,  55  Am.  St  Rep.  168 ;  State  v.  In- 
vestment Co.,  64  Ohio  St.  283,  60  N.  E.  220,  52  L.  R.  A.  530,  83  Am.  St.  Rep. 
754.  A  law  prohibiting  the  giving  of  trading  stamps  held  violative  of  liberty 
guarantied  by  constitution,  since  transaction  prohibited  not  a  lottery.  State 
V.  Dalton,  22  R.  I.  77,  46  Atl.  234,  48  L.  R.  A.  775,  84  Am.  St.  Rep.  818.  See, 
also,  Ex  parte  McKenna,  126  Cal.  429,  58  Pac.  916.  See  "Lotteries,"  Dec. 
Dig.  (Key-No.)  §  3;   Cent.  Dig.  §  3. 

2  2  Waite  V.  Press  Pub.  Ass'n,  155  Fed.  58,  85  C.  C.  A.  576,  11  L.  R.  A.  (N. 
S.)  609,  12  Ann.  Cas.  319;  Stevens  v.  Cincinnati  Times-Star  Co.,  72  Ohio  St 
112,  73  N.  E.  1058,  106  Am.  St  Rep.  586.  And  see, 25  Op.  Attys.  Gen.  280. 
See  "Lotteries,"  Dec.  Dig.  (Key-No.)  §  3;   Cent.  Dig.  §  3. 

2  3  25  Op.  Attys.  Gen.  286. 

24  Iludelson  v.  State,  94  Ind.  426,  48  Am.  Rep,  171.  See  "Lotteries,"  Dec. 
Dig.  (Key-No.)  §  3;    Cent.  Dig.  §  3. 

25  People  V.  Lovin,  179  N.  Y.  164,  71  N.  E.  753,  66  L.  R.  A.  601,  1  Ann.  Cas. 
165.     See  "LotieiHes,"  Dec.  Dig.  (Key-No.)  §  3;    Cent.  Dig.  §  3. 

2  6  State  V.  Nebraska  Home  Co.,  66  Neb.  349,  92  N.  W.  763,  60  L.  R.  A.  418, 
103  Am.  St  Rep.  700,  1  Ann.  Cas.  88;  People  v.  McPhee,  139  Mich.  6S7,  lOli 
N.  W.  174,  69  L.  R.  A.  505,  5  Ann.  Cas.  835;    Grant  v.  State,  54  Tex.  Cr.  R. 


348  LEGALITY   OF   OBJECT  (Ch.  8 

tery  where  no  consideration  is  paid,  directly  or  indirectly,  for  the 
right  to  participate.*' 

AGREEMENTS  CONTRARY  TO  PUBLIC  POLICY 

154.  Any  agreement  which  is  contrary  to  the  poHcy  of  the  law,  or 

public  policy,  because  of  its  mischievous  nature  or  ten- 
dency, is  illegal  and  void,  though  the  acts  contemplated 
may  not  be  expressly  prohibited  either  by  the  common 
law  or  by  statute. 

155,  The  test  of  public  policy  must  be  applied  in  each  case  as  it 

arises,  and  therefore  agreements  which  have  been  or  may 
be  declared  contrary  to  public  policy  cannot  be  exactly 
classified.     The  most  general  are: 

(a)  Agreements  tending  to  injure  the  public  service. 

(b)  Agreements  involving  or  tending  to  the  corruption  of  private 

citizens  with  reference  to  public  matters. 

(c)  Agreements  tending  to  pervert  or  obstruct  public  justice. 

(d)  Agreements  tending  to  encourage  litigation. 

(e)  Agreements  of  immoral  tendency. 

(f)  Gambling  transactions. 

(g)  Agreements  tending  to  induce  fraud  and  breach  of  trust, 
(h)  Agreements  affecting  the  freedom  or  security  of  marriage, 

or  otherwise  in  derogation  of  the  marriage  relation. 

(i)  Agreements  in  derogation  of  the  parental  relation. 

(j)  Agreements  in  unreasonable  restraint  of  trade,  including 
combinations  to  prevent  competition,  control  prices,  and 
create  monopolies. 

(k)  Agreements  exempting  a  person  or  corporation  from  liabil- 
ity for  negligence. 

There  are  many  things  which  the  law  does  not  prohibit  in  the 
sense  of  attaching  penalties,  but  which  are  so  mischievous  in  their 
nature  and  tendency  that,  on  grounds  of  public  policy,  they  cannot 
be  admitted  as  the  subject  of  a  valid  contract. 

It  is  clearly  to  the  interest  of  the  public,  however,  that  persons 
should  not  be  unnecessarily  restricted  in  their  freedom  to  make 

403,  112  S.  W.  10G8,  21  L.  R.  A.   (N.  S.)  87G,  130  Am.  St.  Rep.  897,  16  Ann. 
Cas.  844.     iSee  "Lotteries"  Dec.  Dig.  (Eev-Xo.)  §  S;    Cent.  Dig.  §  S. 

=  7  Yellowstone  Kit  v.  State,  88  Ala.  196,  7  South.  338,  7  L.  R.  A.  599,  16 
Am.  St  Rep.  38 ;  Cross  v.  People,  IS  Colo.  321,  32  Pae.  821,  36  Am.  St  Rep. 
292;  .State  v.  Nebraska  Home  Co.,  66  Neb.  349,  92  N.  W.  763,  60  L.  R.  A.  448, 
103  Am.  St  Rep.  706,  1  Ann.  Cas,  88.  See  "Lotteries;'  Dec  Dig.  (Key-No.) 
i  5;    Cent.  Dig.  %  S. 


§§    154r-155)      AGREEMENTS    CONTRARY   TO    PUBLIC   POLICY  349 

their  own  contracts.  As  expressed  in  a  celebrated  passage  in 
an  English  decision :  *'  "It  must  not  be  forgotten  that  you  are 
not  to  extend  arbitrarily  those  rules  which  say  that  a  given  con- 
tract is  void  as  being  against  public  policy,  because,  if  there  is 
one  thing  more  than  another  which  public  policy  requires,  it 
is  that  men  of  full  age  and  competent  understanding  shall  have 
the  utmost  liberty  of  contracting,  and  that  their  contracts,  when 
entered  into  fairly  and  voluntarily,  shall  be  held  sacred,  and 
shall  be  enforced  by  courts  of  justice.  Therefore  you  have  this 
paramount  public  policy  to  consider:  That  you  are  not  lightly  to 
interfere  with  this  freedom  of  contract."  The  interests  of  the  pub- 
lic, however,  do  require  that  there  shall  be  some  restrictions  on 
the  freedom  of  persons  to  enter  into  contracts.  "The  common 
law  will  not  permit  individuals  to  oblige  themselves  by  a  contract 
either  to  do  or  not  to  do  anything  when  the  thing  to  be  done 
or  omitted  is  in  any  degree  clearly  injurious  to  the  public."  ^' 

The  phrase  public  policy  "has  no  fixed  legal  significance.  It 
varies,  and  must  vary,  with  the  changing  conditions  and  laws  of 
civilizations  and  peoples."  ^*  The  term  is  not  to  be  understood 
in  the  sense  of  "political  expedience,"  as  meaning  what,  in  the 
opinion  of  the  courts,  is  for  the  advantage  of  the  community. ^^ 
Some  courts  have  been  even  more  conservative  in  their  statement 
of  the  rule,  and  have  declared  that  "the  public  policy  of  a  state 
or  nation  must  be  determined  by  its  constitution,  laws,  and  judicial 
decisions;    not  by   the  varying  opinions   of   laymen,   lawyers,  or 

2«  Printing  &  Numerical  Registering  Co.  v.  Sampson,  L.  R.  19  Eq.  462,  per 
Jessel,  M.  R.  And  see  JAMES  QUIRK  MILLING  CO.  v.  MINNEAPOLIS  & 
ST.  L.  R.  CO.,  98  Minn.  22,  107  N.  W.  742,  116  Am.  St  Rep.  336.  Throckmorton 
Cas.  Contracts,  286;  Atlantic  Coast  Line  R.  Co.  v.  Beazley,  54  Fla.  311,  45 
South.  761  (collecting  and  discussing  cases)  ;  Pittsburg,  C.  C.  &  St.  L.  Ry.  v. 
Cox,  55  Ohio  St.  497,  45  N.  E.  641.  35  L.  R.  A.  507;  Hartford  Ins.  Co.  v. 
Chicago,  M.  &  St  P.  Ry.  Co..  175  U.  S.  91,  20  Sup.  Ct  33,  44  L.  Ed.  84: 
McCowen  v.  Pew,  153  Cal.  735,  96  Pac.  893,  21  L.  R.  A.  (N.  S.)  800,  15  Ann. 
Cas.  630;  Zeigler  v.  Illinois  Trust  &  Savings  Bank,  245  111.  ISO,  91  N.  E. 
1041,  28  L.  R.  A.  (N,  S.)  1112,  19  Ann.  Cas.  127.  See  "Contracts;'  Dec.  Dig. 
(Key-No.)  §  108;    Cent.  Dig.  §§  1,98-511. 

2»  West  Virginia  Transp.  Co.  v.  Pipe-Line  Co.,  22  W.  Va.  600,  46  Am.  Rep. 
B27.  And  see  Mumford  v.  Chicago,  R.  1.  &  P.  Ry.  Co.,  128  Iowa,  685,  104 
N.  W.  1135.  See  "Contracts"  Dec.  Dig.  {Key-No.)  §  108;  Cent.  Dig.  §§  498- 
611. 

30  Chicago,  B.  &  Q.  R.  Co.  v.  Bell.  44  Neb.  44,  62  N.  W.  314;  Picket  Pub. 
Co.  V.  Carbon  County  Com'rs,  36  Mont.  188,  92  Pac.  524,  13  L.  R.  A.  (N.  S.) 
1115,  122  Am,  St  Rep.  352,  12  Ann.  Cas.  986.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  108;    Cent.  Dig.  §§  .',98-511. 

3  1  Egerton  v.  Earl  Brownlow,  4  H.  L.  Cas.  1,  123,  per  Parke,  B.  See  "Coti- 
tracts,"  Dec.  Dig.  (Key-No.)  §  108;   Cent.  Dig.  §§  J,98-J,ll. 


350  LEGALITY   OF   OBJECT  (Ch.  8 

judges  as  to  the  demands  of  the  interests  of  the  public."  '*  A 
tendency  to  prejudice  the  public  interest  must  clearly  appear  before 
a  court  is  warranted  in  pronouncing  a  contract  void  on  that  ac- 
count.'^ The  mere  fact  that  a  contract  is  improvident  or  foolish 
as  to  one  of  the  parties  does  not  render  it  void  as  against  public 
policy,^*  but  a  contract  is  void  if  its  effect  would  be  to  prevent 
a  party  from  thereafter  acquiring  any  property  whatever.^" 

The  validity  of  a  contract  must  be  determined,  not  by  the  good 
faith  of  the  parties,  or  by  what  has  been  done  under  it,  but  by  its 
general  tendency  at  the  time  it  is  made.^"  "If  this  general  ten- 
dency is  opposed  to  the  interests  of  the  public,  such  contracts  are 
invalid,  however  good  the  intent  of  the  parties  to  them,  and  even 
though  no  harm  to  any  one  resulted,  or  would  result,  in  the 
particular  case."  " 


SAME— AGREEMENTS  TENDING  TO  INJURE  THE  PUB- 
LIC SERVICE 

156.  Among  the  agreements  which  are  illegal  as  tending  to  injure 
the  public  service  may  be  mentioned — 
(a)  Agreements  for  the  sale  of,  or  other  trafBc  in,  a  public  office, 
or  its  emoluments. 

3  2  Hartford  Fire  Ins.  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  70  Fed.  202,  17 
C.  C.  A.  62,  30  L.  R.  A.  193.  And  see  Picket  Pub.  Co.  v.  Carbon  County 
Com'rs,  36  Mont.  188,  92  Pac.  524,  13  L.  R.  A.  (N.  S.)  1115,  122  Am.  St  Rep. 
352,  12  Ann.  Cas.  986 ;  Mut.  Life  Ins.  Co.  of  New  York  v.  Durden,  9  Ga.  App. 
797,  72  S.  E.  295.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  108;  Cent.  Dig.  §§ 
Jt9S-511. 

3  3  Smith  V.  Du  Bose,  78  Ga.  413,  435,  3  S.  E.  309,  €  Am.  St.  Rep.  260;  Cox 
V.  Hughes,  10  Cal.  App.  553,  102  Pac.  956 ;  Couch  v.  Hutchinson,  2  Ala.  App. 
444,  57  South.  75  (contract  for  sale  of  right  to  vend  patent  churn  sustained)  ; 
Electrova  Co.  v.  Spring  Garden  Ins.  Co.,  156  N.  C.  232,  72  S.  E.  306,  35  L.. 
R.  A.  (N.  S.)  1216;  Hall  v.  O'Neil  Turpentine  Co.,  56  Pla.  324,  47  South.  609, 
16  Ann.  Cas.  738.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  lOS;  Cent.  Dig.  §§ 
J,98-511. 

34  Craig  V.  United  States  Health  &  Accident  Ins.  Co.,  80  S.  C.  1,  61  S.  E. 
423,  18  L.  R.  A.  (N.  S.)  106,  128  Am.  St.  Rep.  877,  15  Ann.  Cas.  216.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  108;    Cent.  Dig.  §§  J,9S-511. 

8  5  Baltimore  Humane  Impartial  Soc.  &  Aged  Woinen's  &  Aged  Men's  Homes 
V.  Pierce,  100  Md.  520,  60  Atl.  277,  70  L.  R.  A.  485.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)   §  108;    Cent.  Dig.  §§  498-511. 

3  6  Sherman  v.  Burton,  165  Mich.  293,  130  N.  W.  667,  33  L.  R.  A.  (N.  S.)  87; 
Noble  V.  Davison,  177  Ind.  19,  96  N.  E.  325.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  102;    Cent.  Dig.  §§  462-^67. 

8  7  Sheppey  v.  Stevens  (C.  C.)  177  Fed.  484.  And  see  Richardson  v.  Cran- 
dall,  48  N.  Y.  348,  362 ;  McMullen  v.  Hoffman,  174  U.  S.  639,  19  Sup.  Ct.  839, 
43  Lr.  Ed.  1117.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  %  102;  Cent.  Dig.  §S 
462-467, 


§    156)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  351 

(b)  Agreements  by  public  officers  for  greater  pay  than  is  fixed  by 

law  for  performance  of  official  duty ;  or  for  less  pay  where 
the  services  are  yet  to  be  performed. 

(c)  Assignment  of  his  future  salary,  and,  under  some  circum- 

stances, of  his  pension,  by  a  public  officer. 

(d)  Agreements  to  influence  legislation  by  personal  solicitation 

of  the  legislators,  or  other  objectionable  means. 

(e)  Agreements  to  procure  administrative  action  by  public  offi- 

cers by  corrupt  means.  Some,  but  not  all,  courts  hold  that 
any  agreement  by  a  third  person,  for  a  compensation,  to 
procure  such  action,  is  illegal,  because  of  its  tendency  to 
introduce  corrupt  means. 

(f)  Agreements  by  public  or  quasi  public  corporations  which  in- 

terfere with  their  performance  of  the  duties  which  they  owe 
to  the  public. 

As  the  public  has  an  interest  in  the  proper  performance  of  their 
duty  by  public  officers,  and  would  be  prejudiced  by  agreements 
tending  to  impair  an  officer's  efficiency,  or  otherwise  interfere  with 
the  due  execution  of  the  duties  of  the  office,  such  agreements  are 
contrary  to  public  policy  and  void.^' 

Traffic  in  Public  Offices 

As  stated  by  Greenhood,"  therefore,  "any  contract  to  appoint  one 
to  public  office,*"  or  involving  the  sale  of  a  public*^  or  quasi  pub- 

8  8  Benson  v.  Bawden,  149  Mich.  584,  113  N.  W.  20,  13  L.  R.  A.  (N.  S.)  721, 
In  which  an  agreement  by  a  postmaster  to  remove  the  post  office  to  a  par- 
ticular building  and  maintain  it  there  during  his  term,  for  a  consideration 
moving  to  himself,  was  held  void,  because  the  public  interest  required  the 
exercise  of  his  best  judgment  in  the  location  of  the  office.  But  where  a  public 
Institution  must  be  located  or  structure  built,  private  contributions  inuring 
to  the  benefit  of  the  government  on  condition  that  a  particular  location  is 
selected  are  not  against  public  policy.  Currier  v.  United  States,  1S4  Fed. 
700,  106  C.  C.  A.  654.  See  "Contracts"  Dec.  Dig.  (Key-No.)  §  131;  Cent. 
Dig.  §§  59.',-607. 

8  9  Greenh.  Pub.  Pol.  rule  2S7,  p.  338. 

*o  Robertson  v.  Robinson,  65  Ala.  610,  39  Am.  Rep.  17;  Hager  v.  Catlin, 
18  Hun  (N.  Y.)  448;  Schneider  v.  Local  Union  No.  60,  116  La.  270,  40  South. 
700,  5  L.  R.  A.  (N.  S.)  891,  114  Am.  St  Rep.  549,  7  Ann.  Cas.  868;  Stout  v. 
Ennis,  28  Kan.  706.  A  contract  by  an  officer  after  election,  to  employ  a  per- 
son as  his  deputy  may  be  valid.  Stout  v.  Ennis,  supra.  See  ''Contracts" 
Dec.  Dig.   (Key-No.)  §  121,;    Cent.  Dig.  §§  576-585. 

*i  Hall  V,  Gavitt,  18  Ind.  390;  Card  v.  Hope,  2  Barn.  &  C.  661;  Proprietors 
of  Cardigan  v.  Page,  6  N.  II.  183 ;  Town  of  Meredith  v.  Ladd,  2  N.  H.  517 ; 
Love  V.  Buckner,  4  Bibb  (Ky.)  506;  Groton  v.  Inhabitants  of  Waldoborough, 
11  Me.  306,  26  Am.  Dec.  530;  Martin  v.  Royster,  8  Ark.  74;  Outon  v.  Rodes, 
3  A.  K.  Marsh.  (Ky.)  432,  13  Am.  Dec.  193;  Engle  v.  Chipman,  51  Mich. 
524,  16  N.  W.  886;   Alvord  v.  Collin,  20  Pick.  (Mass.)  at  page  428.    The  legis- 


352  LEGALITY   OF   OBJECT  (Ch.  8 

lie*'  office,  or  to  do  anything-  in  consideration  of  the  promisee  ex- 
changing office  with,**  or  securing  an  office  for**  the  promisor,  or 
recommending  him  for  such  office,*'  or  resigning  any  office,*'  is 
void." 

As  tending  to  injure  the  public  service  may  also  be  mentioned 
agreements  by  which  a  person  not  occupying  a  public  office  secures 
to  himself  all  or  any  part  of  its  benefits  or  emoluments.*^  Other 
agreements  to  which  this  principle  applies  are  agreements  by  a  pub- 
lic officer  to  pay  another  for  performing  the  duties  of  his  office  for 
him,  for  an  officer  has  no  authority  to  delegate  his  duties  to  anoth- 
er;*' but  this  does  not  apply  where  an  officer  merely  employs  a 
deputy  or  other  private  person  to  assist  him.*' 

Agreements  Affecting  the  Compensation  of  Public  Officers 

As  we  have  seen,  a  promise  to  pay  a  public  officer  for  performing 
duties  which  he  is  required  by  law  to  perform  without  such  com- 
pensation, or  to  pay  him  more  than  the  fees  fixed  by  law,  is  void  for 

lature  may  provide  for  sale  of  an  office.  Town  of  Thetford  v.  Hubbard.  22 
Vt  440.     See  "Contracts,"  Dec.  Dig.  (Kev-No.)  §  124;   Cent.  Dig.  §§  516-585. 

*2  Blatchford  v.  Preston,  8  Term  R.  89;  Card  v.  Hope,  2  Barn.  &  C.  661. 
See  "Contracts"  Dec.  Dig.   (Key-No.)  §  124;    Cent.  Dig.  §§  576-585. 

*8  Stroud  V.  Smith,  4  Houst.  (Del.)  448.  See  "Ccmtracts,"  Dec.  Dig.  (Key- 
No.)  §  124;   Cent.  Dig.  §§  576-^85. 

4  4  Gray  v.  Hook,  4  N.  Y.  449;  Law  v.  Law,  3  P.  Wms.  391;  Meguire  y. 
Corwine,  101  U.  S.  Ill,  25  L.  Ed.  899 ;  Nichols  v.  Mudgett,  32  Vt  546 ;  Martin 
V.  Wade,  37  Cal.  168;  Hunter  v.  Nolf,  71  Pa.  2S2 ;  Morse  v.  Ryan,  26  Wis. 
356;  Harris  v.  Chamberlain,  126  Mich.  280,  85  N.  W.  728;  Eversole  v.  HolU- 
day,  131  Ky.  202,  114  S.  W.  1195.  A  contract  by  the  heir  not  to  object  to 
the  public  administrator  acting  as  administrator  of  the  estate  is  void  as 
trafficking  in  the  office.  In  re  Ii-win's  Estate,  123  Mo.  App.  508,  100  S.  W. 
565.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  124;   Cent.  Dig.  §§  576-5S5. 

4  6  Hartwell  v.  Hartwell,  4  Ves.  811;  Edwards  v,  Randle,  63  Ark.  318,  38 
S.  W.  343,  36  L.  R.  A.  174,  58  Am.  St  Rep.  10&  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  124;    Cent.  Dig.  §§  576-585. 

4  6  Eddy  V.  Capron,  4  R.  I.  394,  67  Am.  Dec.  541 ;  Meacham  v.  Dow,  32  Vt 
721 ;  Basket  v.  Moss,  115  N.  C.  448,  20  S.  E.  733,  48  L.  R.  A.  842,  44  Am.  St 
Rep.  463.  And  see  Forbes  v.  McDonald,  54  Cal.  98.  See  "Contracts,"  Deo. 
Dig.  (Key-No.)  §  124;    Cent.  Dig.  §§  576-5S5. 

4  7  Greenh.  Pub.  Pol.  rule  293,  p.  349.  An  agreement  by  which  one  party 
stipulates  to  pay  the  other  a  proportion  of  the  fees  and  emoluments  of  a 
public  office  which  he  is  seeking,  in  consideration  that  the  other  will  aid  hlra 
in  obtaining  it,  is  void.  Gray  v.  Hook,  4  N.  Y.  449.  And  see  Deyoe  v.  Wood- 
worth,  144  N.  Y.  448,  39  N,  E.  375.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  { 
125;   Cent.  Dig.  §§  .583-585. 

4  8  Engle  V.  Chipman,  51  Mich.  524,  16  N.  W.  SS6;  Schloss  v.  Hewlett,  81 
Ala.  266,  1  South.  263.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  125;  Cent. 
Dig.  §§  583-585. 

49  Price  v.  Caperton,  1  Duv.  (Ky.)  207.  See  "Contracts,"  Dec  Dig.  (Key- 
No.)   S  125;    Cent.  Dig.  §§  583-585. 


§    156)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  353 

want  of  consideration. °°  Such  contracts  are  also  illegal  as  being 
contrary  to  public  policy. °^  "The  rewards  of  officers,"  it  has  been 
said,  "are  established  by  law.  Their  services  are  to  be  performed 
for  those  legal  rewards ;  and  other  private  rewards  for  acts  which 
are  required  from  them  *  *  *  must  be  regarded  as  corrupt  and 
illegal  exactions."  ^'^  To  recognize  as  valid  contracts  for  additional 
compensation  would  tend  to  cause  officers  to  neglect  their  duties  un- 
less promised  such  additional  compensation,  and  would  thus  tend  to 
make  bribery  the  only  means  by  which  the  laws  could  be  enforced.'^ 
The  rule  does  not  apply  so  as  to  prevent  an  officer  from  recovering 
on  a  promise  to  pay  him  for  doing  more  than  he  is  required  by  law 
to  do." 

It  has  also  been  held  that  an  agreement  by  a  public  officer,  before 
performance  of  services,  to  accept  less  than  the  fees  fixed  by  law,  is 
against  public  policy. °° 

BO  Ante,  p.  157. 

51  Weaver  v.  Whitney,  1  Hopk.  Ch.  (N.  Y.)  13;  Preston  v.  Bacon,  4  Conn. 
471;  Neustadt  v.  Hall,  58  111.  172;  Trundle's  Adm'r  v.  Riley,  17  B.  Mon. 
(Ky.)  396;  Gilmore  v.  Lewis,  12  Ohio,  281;  Brown  v.  Bank,  137  Ind.  655,  37 
N.  E.  158,  24  L.  R.  A.  206;  Adams  Co.  v.  Hunter,  78  Iowa,  328,  43  N.  W. 
208,  6  L.  R.  A.  615;  Foley  v.  Piatt,  105  Mich.  635,  63  N.  W.  520;  ante,  p. 
157,  and  cases  there  cited.  Bond  of  indemnity  given  a  sheriff  to  induce 
him  to  do  what  he  was  required  to  do  without  it.  Mitchell  v.  Vance,  5  T. 
B.  Mon.  (Ky.)  528,  17  Am.  Dee.  96.  Bond  indemnifying  officer  against  loss 
for  omitting  to  execute  process.  Harrington's  Adm'r  v.  Cravrford,  136  Mo. 
467,  38  S.  W.  80,  35  L.  R.  A.  477,  58  Am.  St.  Rep.  653.  A  public  officer  is 
not  entitled  to  reward  offered  for  the  arrest  which  it  was  his  duty  to  make 
without  pay.  Smith  v.  Whildin,  10  Pa.  39,  49  Am.  Dec.  572;  Gilmore  v. 
Lewis,  12  Ohio,  281;  Pool  v.  City  of  Boston,  5  Cush.  (Mass.)  219;  Stamper 
y.  Temple,  6  Humph.  (Tenn.)  113,  44  Am.  Dec.  296 ;  Davies  v.  Burns,  5  Allen 
(Mass.)  349.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  125;  Cent.  Dig.  §§ 
5S3-5S5. 

52  Weaver  v.  Whitney,  1  Hopk.  Ch.  (N.  Y.)  13.  See  "Contracts"  Dec.  Dig. 
(Kcij-yo.)  §  125;   Cent.  Dig.  §§  5SS-5S5. 

63  Dull  V.  Mammoth  Min.  Co.,  28  Utah,  467,  79  Pac.  1050.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  125;    Cent.  Dig.  §§  583-585. 

54  Trundle  v.  Riley,  17  B.  Mon.  (Ky.)  396;  McCandless  v.  Steel  Co.,  152 
Pa.  139,  25  Atl.  579;  CarroU  v.  Tyler,  2  Har.  &  G.  (Md.)  57.  An  officer 
may  recover  a  reward  offered  for  apprehension  of  a  criminal,  if  it  was  no 
part  of  his  duty  to  make  the  arrest  Morrell  v.  Quai'les,  35  Ala.  544;  Evans 
V.  Inhabitants  of  City  of  Trenton,  24  N.  J.  Law,  764.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  125;    Cent.  Dig.  §§  583-5S5. 

3  5Kodenhofer  v.  Ilogan,  142  Iowa,  321,  120  N.  W.  659,  134  Am.  St  Rep. 
418,  19  Ann.  Cas.  1073;  Gallaher  v.  City  of  Lincoln,  63  Neb.  339,  88  N.  W. 
505 ;  City  of  Pittsburg  v.  Goshorn,  230  Pa.  212,  79  Atl.  505 ;  Hawkeye  Ins. 
Co.  v.  Brainard,  72  Iowa,  130,  33  N.  W.  603 ;  Edgerly  v.  Hale,  71  N.  H.  138, 
51  Atl.  679  (sherift''s  fee  for  service  payable  only  if  action  successful).  Con- 
tra, Bloom  V.  Hazzard,  104  Cal.  310,  37  Pac.  1037.  Cf.  Petei-s  v.  City  of 
Davenport  104  Iowa,  625.  74  N.  W.  6.  iSfee  "Contracts,"  Dec  Dig.  (Key-No.) 
I  125;   Cent.  Dig.  §§  583-585. 

Clark  Cont.(3d  Ed.)— 23 


354  LEGALITY   OF   OBJECT  (Ch.  8 

Assignment  of  Salary  or  Pension  by  Officer 

The  rule  also  applies  to  the  assignment  of  their  salaries  by  public 
officers.  One  of  the  reasons  given  by  an  English  judge  was  that  "it 
is  fit  that  the  public  servants  should  retain  the  means  of  a  decent 
subsistence,  without  being  exposed  to  the  temptations  of  poverty."  "• 
It  is  not  regarded  as  contrary  to  public  policy  for  an  officer  to  as- 
sign his  salary  after  it  has  become  due,  but  an  assignment  of  it  be- 
fore it  is  due  is  void.  The  reason  is  that  an  officer  is  not  apt  to  be  as 
efficient  in  the  performance  of  his  duties  after  he  has  assigned  his 
unearned  salary.^''  The  rule  has  been  carried  so  far  as  to  render 
void  a  contract  by  a  public  officer  to  apply  unearned  salary  or  fees 
to  the  payment  of  certain  obligations  upon  which  he  was  liable  with 
others.^* 

So,  also,  the  assignment  of  a  pension  may  be  illegal  if  it  is  not 
granted  exclusively  for  past  services.  "Where  the  pension  is  grant- 
ed, not  exclusively  for  past  services,  but  as  a  consideration  for  some 
continuing  duty  or  service,  although  the  amount  of  it  may  be  in- 
fluenced by  the  length  of  service  which  the  party  has  already  per- 
formed, it  is  against  the  policy  of  the  law  that  it  should  be  assign- 
able." «*» 

56  Wells  V.  Foster,  8  Mees.  &  TV.  149.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  125;  Cent.  Dig.  §  583;  "Assignments,"  Dec.  Dig.  {Key-No.)  §  15;  Cent. 
Dig.  §  23. 

57  BLISS  V.  LAWRENCE,  58  N.  Y.  442,  48  How.  Prac.  (N.  Y.)  22,  17  Am. 
Rep.  273,  Tbrockmortou  Cas.  Coutracts,  23(3;  Banks  v.  Dunn,  66  Cal.  72, 
4  Pac.  963;  Bowery  Nat.  Bank  v.  Wilson,  122  N.  Y.  478,  25  N.  E.  855,  9  L.  R. 
A.  706,  19  Am.  St.  Rep.  507 ;  Schloss  v.  Plewlett,  81  Ala.  266,  1  South.  263 ; 
State  V.  Williamson,  118  Mo.  146,  23  S.  W.  1054,  21  L.  R.  A.  827,  40  Am. 
St.  Rep.  358;  Field  v.  Chipley,  79  Ky.  260,  42  Am.  Rep.  215;  National  Bank 
of  El  Paso  V.  Fink,  80  Tex.  303,  24  S.  W.  256,  40  Am.  St  Rep.  833 ;  Brackett 
V.  Blake,  7  Mete.  (Mass.)  335,  41  Am.  Dec.  442;  First  Nat.  Bank  v.  State, 
68  Neb.  482,  94  N.  W.  633,  4  Ann.  Cas.  423 ;  Contra,  State  Bank  v.  Hastings, 
15  Wis.  78.  The  rule  applies  to  an  assignment  of  his  fees  by  an  executor 
before  they  are  ascertained  and  fixed  as  provided  by  statute.  In  re  Worth- 
ington,  66  Hun,  033,  22  N.  Y.  Supp.  1110 ;  Id.,  141  N.  Y.  9,  35  N.  E.  929,  23 
L.  R.  A.  97.  See  "Contracts,"  Doc.  Dig.  {Key-No.)  §  125;  Cent.  Dig.  §  583; 
"Assignments,"  Dec.  Dig.   (Key-No.)  §  15;    Cent.  Dig.  §  23. 

5  8  Sen-ill  V.  Wilder,  77  Ohio,  343,  83  N.  E.  486,  14  L.  R.  A.  (N.  S.)  982. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  125;  Cent.  Dig.  §  583;  "Assignments," 
Dec.  Dig.  (Key-No.)  §  15;  Cent.  Dig.  §  23. 

59  Wells  V.  Foster,  8  Mees.  &  W.  149.  And  see  BLISS  v.  LAWRENCE,  58 
N.  Y.  442,  17  Am.  Rep.  273,  Throckmorton  Cas.  Contracts,  236  (collecting  the 
English  cases).  Act  Cong.  Feb.  28,  1883,  c.  58,  §  2,  22  Stat.  432  (U.  S.  Comp. 
St.  1901,  p.  3278),  makes  void  any  "pledge,  mortgage,  sale,  assignment,  or 
transfer  of  any  right,  claim,  or  interest  in  any  pension."  See  Loser  v. 
Board.  92  Mich.  633,  52  N.  W.  95G.  See  "Pension,"  Dec.  Dig.  (Key-No.)  §  9; 
Cent.  Dig.  §  11. 


§    156)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  355 

Lobbying  Contracts 

What  are  known  as  "lobbying  contracts"  also  fall  within  this 
class  of  illegal  ag-reements.  Any  agreement  to  render  services  in 
procuring  legislative  action,  either  by  congress  or  by  a  state  legis- 
lature or  by  a  municipal  council,  by  personal  solicitation  of  the  legis- 
lators or  other  objectionable  means,  is  contrary  to  the  plainest  prin- 
ciples of  public  policy,  and  is  void."**  "A  contract  for  lobby  servic- 
es," it  is  said  in  a  New  York  case,  "for  personal  influence,  for  mere 
importunities  to  members  of  the  legislature  or  other  official  body, 
for  bribery  or  corruption,  or  for  seducing  or  influencing  them  by  any 
other  arguments,  persuasions,  or  inducements  than  as  directly  and 
legitimately  bear  upon  the  merits  of  the  pending  application,  is  il- 
legal, and  against  public  policy,  and  void ; "  *^  and  it  has  been  held 
that  a  promise  to  pay  a  contingent  fee  on  the  passage  of  a  bill  is 
void,  because  such  a  fee  is  "a  direct  and  strong  incentive  to  the  ex- 
ertion of  not  merely  personal,  but  sinister,  influence  upon  the  legis- 
lature." " 

60  TRTST  V.  CHTLrD,  21  Wall.  441,  22  L.  Ed.  623,  Throckmorton  Cas.  Con- 
tracts, 241;  Spalding  v.  Ewing,  149  Pa.  375,  24  Atl.  219,  15  L.  R.  A.  727, 
34  Am.  St  Rep.  608;  Frost  v.  Belmont,  6  Allen  (Jlass.)  152;  Rose  v.  Truax, 
21  Barb.  (N.  T.)  361;  Powers  v.  Skinner,  34  Vt  274,  80  Am.  Dec.  677;  Mc- 
Bratney  v.  Chandler,  22  Kan.  692,  31  Am.  Rep.  213;  Cook  v.  Shipman,  24 
111,  614;  Houlton  v.  Dunn,  60  Minn.  26,  61  N.  W.  898.  30  L.  R.  A.  737,  51 
Am.  St.  Rep.  493 ;  Colusa  County  v.  Welch,  122  Cal.  428,  55  Pac.  243 ;  Hay- 
ward  V.  Manufacturing  Co.,  85  Fed.  4,  29  C.  C.  A.  438;  Burke  v.  Wood  (C. 
C.)  162  Fed.  533.  "It  is  not  necessary  to  adjudge  that  the  parties  stipulated 
for  corrupt  action,  or  that  they  intended  that  secret  and  improper  resorts 
should  be  had.  It  is  enough  that  the  contract  tends  directly  to  those  results. 
It  furnishes  a  temptation  to  the  plaintiff  to  resort  to  corrupt  means  or  im- 
proper devices  to  influence  legislative 'action.  It  tends  to  subject  the  legis- 
lature to  influences  destructive  of  its  character,  and  fatal  to  public  confidence 
in  its  action."  Mills  v.  Mills,  40  N.  Y.  543,  100  Am.  Dec  535.  And  see  Veazey 
V.  Allen,  173  N.  Y.  359,  66  N.  E.  103,  62  L.  R.  A.  3G2.  See  "Contracts,"  Dec. 
Dig.  {Key-No.)  §  126;   Cent.  Dig.  §§  586-593. 

«i  Brown  v.  Brown,  34  Barb,  (N.  Y.)  533,  And  see  Sweeney  v.  McLeod,  15 
Or,  330,  15  Pac.  275.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  126;  Cent.  Dig. 
§§  5S6-593. 

6  2  Wood  V.  McCann,  6  Dana  (Ky.)  366.  And  see  Marshall  v.  Railroad 
Co.,  16  How.  314,  14  L.  Ed.  953 ;  Coquillard's  Adm'r  v.  Bearss,  21  Ind.  479, 
83  Am.  Dec.  362;  Harris  v.  Roof's  Ex'rs,  10  Barb.  (N.  Y.)  489;  Weed  v. 
Black,  2  MacArthur  (9  D.  C.)  268,  29  Am.  Rep.  618;  Chippewa  Valley  & 
S.  Ry.  Co.  V.  Railway  Co.,  75  Wis.  224,  44  N.  W.  17,  6  L.  R.  A.  601  ;  Critch- 
field  V.  Paving  Co.,  174  111.  466,  51  N.  E.  5.'')2,  42  L.  R.  A.  347;  Richardson 
V.  Scotts  Bluff  County,  59  Neb.  400,  81  N.  W.  309,  48  L.  R.  A.  294,  SO  Am. 
St.  Rep.  682.  But  see,  contra,  Bryan  v.  Reynolds,  5  Wis.  200,  68  Am.  Dec. 
55 ;  Workman  v.  Campbell,  46  Mo.  305 ;  Burbridge  v.  Fackler,  2  MacArthur 
(9  D.  C.)  407;  Denison  v.  Crawford  Co.,  48  Iowa,  211;  Bergen  v.  Frisbie, 
125  Cal.  168,  57  Pac.  784.  The  legislature  may  determine  what  public  policy 
requires  or  permits  in   prosecuting   claims  of  the  state  against  the  United 


35G  LEGALITY   OF   OBJECT  (Cll.  8 

The  rule,  however,  does  not  apply  to  an  agreement,  for  purely- 
professional  services,  such  as  the  drafting  of  a  petition  to  set  forth 
a  claim  for  presentment  to  the  legislature,  attending  the  taking  of 
testimony,  collecting  facts,  preparing  arguments,  and  submitting 
them  orally  or  in  writing  to  a  committee  or  other  proper  authority, 
and  other  services  of  like  character.  They  rest  on  the  same  princi- 
ple of  ethics  as  professional  services  rendered  in  a  court  of  justice, 
and  are  no  more  objectionable.*^ 

Corruption  of  Public  Officers 

"Any  contract,"  says  Greenhood,'*  "contemplating  the  use  of  se- 
cret influence  with  public  officers,*'  or  calculated  to  induce  the  use  of 
such  influence,'®  is  void,  especially  when  one  of  the  parties  is  a  pub- 
lic officer  himself,'^  though  he  be  but  a  representative  of  a  foreign 

States,  and  the  manner  of  compensation.  Davis  v.  Com.,  1G4  Mass.  241,  41  N. 
E.  292,  30  L.  R.  A.  743.  See,  also,  Opinion  of  Justices,  72  N.  H.  601,  54  Atl. 
950.    See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  126;    Cent.  Dig.  §§  586-593. 

•  8  TRIST  V.  CHILD,  21  Wall,  441.  22  L.  Ed.  G23,  Throckmorton  Cas.  Con- 
tracts, 241 ;  Bryan  v.  Reynolds,  5  Wis.  200,  68  Am.  Dec.  55 ;  Chesebrough  v. 
Conover,  140  N.  Y,  382,  35  N.  E.  633  (affirming  66  Hun,  634,  21  N.  Y.  Supp. 
566)  ;  Salinas  v.  Stillman,  66  Fed.  677,  14  C.  C.  A.  .50.  And  see  Houlton  v. 
Niehol,  93  Wis.  393,  67  N.  W.  715,  33  L.  R.  A.  166,  57  Am.  St.  Rep.  928 ;  Cole 
V.  Brown-Hurley  Hardware  Co.,  139  Iowa,  487,  117  N.  W.  746,  18  L.  R.  A.  (N. 
S.)  1161,  16  Ann.  Cas.  846.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  126;  Cent. 
Dig.  §§  5S6-59S. 

6  4  Greenh.  Pub.  Pol.  p.  357,  rule  300. 

85  Murray  v.  Wakefield,  9  Mo.  App.  591;  Hutchen  v.  Gibson,  1  Bush  (Ky.) 
270.  To  use  influence  to  procure  session  of  legislature  at  a  particular  place. 
Thome  V.  Yontz,  4  Cal.  321.  To  use  influence,  or  agreement  tending  to  en- 
courage use  of  influence,  with  the  prosecuting  attorney  iu  respect  to  criminal 
prosecutions.  Ormerod  v.  Dearman,  100  Pa.  561,  45  Am.  Rep.  391;  Wight 
V.  Rindskopf,  43  Wis.  344;  Wildey  v.  Collier,  7  Md.  273,  61  Am.  Dec.  346; 
Rhodes  v.  Neal,  64  Ga.  704,  37  Am.  Rep.  93 ;  Barron  v.  Tucker,  53  Vt.  338, 
38  Am.  Rep.  684.  Agreement  for  compensation  to  use  influence  to  procure 
pardon  of  convict,  or  commutation  of  sentence.  Haines  v.  Lewis,  54  Iowa, 
301,  6  N.  W.  495,  37  Am.  Rep.  202;  O'Reilly  v.  Cleary,  8  Mo.  App.  186; 
Kribben  v.  Haycraft,  26  Mo.  396;  Hatzfield  v.  Gulden,  7  Watts  (Pa.)  152, 
31  Am.  Dec.  750 ;  Norman  v.  Cole,  3  Esp.  253 ;  Deering  &  Co.  v.  Cunningham, 
63  Kan.  174,  65  Pac.  263,  54  L,  R.  A.  410.  But  see  Formby  v.  Pryor,  15  Ga. 
258;  Moyer  v.  Cantieny,  41  Minn.  242,  42  N.  W.  1060;  Rau  v.  Boyle,  5  Bush 
(Ky.)  253;  Timothy  v.  Wright,  8  Gray  (Mass.)  522;  Chadwick  v.  Knox, 
31  N.  H.  226,  64  Am.  Dec.  329 — sustaining  such  an  agreement  where  no  corrupt 
means  were  to  be  resorted  to.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  131; 
Cent.  Dig.  §§  594-601. 

66  TRIST  V.  CHILD,  21  Wall.  441,  22  L.  Ed.  623,  Throckmorton  Cas.  Con- 
tracts, 241 ;  Tool  Co.  v.  Norris,  2  Wall.  45,  17  L.  Ed.  SOS ;  Ormerod  v.  Dear- 
man,  100  Pa.  561,  45  Am.  Rep.  391 ;  Bowman  v.  Coffroth,  59  Pa.  19;  O'Hara 
V.  Carpenter,  23  Mich.  410,  9  Am.  Rep.  89.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  131;    Cent.  Dig.  §§  59J,-607. 

67  Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539;    Ilovey  v.  Storer, 


§    156)  ■  AGREEMENTS   CONTRARY   TO   TUBLIC    POLICY  357 

government,  and  his  position  be  merely  honorary,"  '"  Under  this 
rule  any  agreement  by  which  a  person  is  to  endeavor  to  procure  a 
government  contract  for  another  by  the  use  of  corrupt  means  is  il- 
legal. Some  courts  hold  that  such  an  agreement,  though  a  compen- 
sation is  to  be  paid,  is  not  illegal  in  itself,  but  becomes  so  only 
where  corrupt  means  are  to  be  resorted  to.®'  Other  courts,  how- 
ever, have  held  that  aiiy  such  agreement,  for  a  compensation,  is  il- 
legal, because  of  its  tendency  to  introduce  corrupt  means.  "Con- 
siderations," it  has  been  said  by  the  supreme  court  of  the  United 
States,  "as  to  the  most  efficient  and  economical  mode  of  meeting  the 
public  wants  should  alone  control,  in  this  respect,  the  action  of 
every  department  of  the  government.  *  *  ♦  Whatever  tends  to 
introduce  any  other  elements  into  the  transaction  is  against  public 
policy.  That  agreements  like  the  one  under  consideration  have  this 
tendency  is  manifest.  They  tend  to  introduce  personal  solicitation 
and  personal  influence  as  elements  in  the  procurement  of  contracts; 
and  thus  directly  lead  to  inefficiency  in  the  public  service,  and  to 
unnecessary  expenditures  of  the  public  funds."  ''° 

It  has  also  been  held  that  a  contract  to  bribe  or  corruptly 
influence  officers  of  a  foreign  government  will  not  be  enforced 
in  the  courts  of  this  country,  even  though  it  may  not  be  invalid 
according  to  the  laws  and  customs  of  the  foreign  country.  The 
courts  will  refuse  to  enforce  such  a  contract,  "not  from  any  con- 
sideration of  the  interests  of  that  government,  or  any  regard  for 
its  policy,  but  from  the  inherent  viciousness  of  the  transaction, 
its  repugnance  to  our  morality,  and  the  pernicious  effect  which 
its  enforcement  by  our  courts  would  have  upon  our  people."  '^ 

63  Me.  486.  See  "Contracts;'  Dec.  Dig.  {Key-yo.)  S  ISl;  Cent.  Dig.  §§  594- 
607, 

«8  Note  71,  Infra. 

•8  Lyon  V.  Mitchell,  36  N.  Y.  235,  93  Am.  Dec.  502;  Southard  v.  Boyd,  51 
N.  Y.  177;  Beal  v.  Polhenius,  67  Mich.  130,  34  N.  W.  532;  Winpenny  v. 
French,  18  Ohio  St.  469 ;  Barry  v.  Capen,  151  Mass.  99,  23  N.  E.  735,  6  L.  R. 
A.  808;  Formby  v.  Pryor,  15  Ga.  258;  Moyer  v.  Cantieny,  41  Minn.  242,  42 
N.  W.  1060;  Chadwick  v.  Knox,  31  N.  H.  226,  64  Am.  Dec.  329.  See  "Con- 
tracts," Dec.  Dig.  {Key-'So.)  §  ISl ;    Cent.  Dig.  §§  594-607. 

to  Tool  Co.  V.  Norris,  2  Wall.  45,  17  L.  Ed.  868.  And  see  Oscanyan  v.  Arms 
Co.,  103  U.  S.  261,  26  L.  Ed.  539;  Elkhart  County  Lodge  v.  Crary,  98  Ind. 
238,  49  Am.  Rep.  746;  Meguire  v.  Comine,  101  U.  S.  108,  25  L.  Ed.  899; 
Devlin  v.  Brady,  36  N.  Y.  531;  Spence  v.  Harvey,  22  Cal.  386,  83  Am.  Dec. 
09;  Caton  v.  Stewart,  76  N.  C.  357;  Critchfield  v.  Paving  Co.,  174  111.  466, 
51  N.  E.  552,  42  L.  R.  A.  347 ;  Russell  v.  Courier  Printing  &  Publishing  Co., 
43  Colo.  321,  95  Pac.  936;  Hare  v.  Phaup,  23  Okl.  575,  101  Pac.  1050,  138 
Am.  St  Rep.  852.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  S  ISl;  Cent.  Dig.  §§ 
694-607. 

Ti  Oscanyan  v.  Arras  Co.,  103  U.  S.  261,  26  L.  Ed.  539.  See  "Contmcis," 
Dec.  Dig.  {Key-No.)  §  131;  Cent.  Dig.  §§  594-607. 


358  ,  LEGALITY   OF  OBJKCT  (Ch.  8 

As  in  the  case  of  contracts  to  render  services  in  procuring  the 
passage  of  acts  and  ordinances,  so  also  in  the  case  of  contracts  to 
render  services  in  procuring  administrative  action  by  government 
officials,  the  services  contracted  for  may  be  legitimate.  If  the 
contract  does  not  tend  to  induce  the  use  of  corrupt  means,  and  in 
some  jurisdictions,  as  we  have  seen,  if  corrupt  means  are  not  to 
be  resorted  to,  the  contract  is  valid.''" 

Agreements  by  Public  or  Quasi  Public  Corporations 

As  falling  within  this  class  of  illegal  contracts  may  also  be 
mentioned  agreements  by  public  or  quasi  public  corporations 
which  interfere  with  their  duties  to  the  public.''*  Railroad  com- 
panies and  other  common  carriers,  for  instance,  are  regarded  to 
some  extent  as  public  servants,  and  it  is  contrary  to  public  policy 
for  them  to  make  any  agreement  whereby  they  may  be  hindered 
in  serving  the  public.  A  contract  by  which  a  railroad  corporation 
agrees  to  establish  a  station  at  a  particular  point  or  to  build  along 
a  particular  route  to  the  exclusion  of  others,  or  not  to  build  along 
a  particular  route  or  at  a  particular  place,  is  void  as  tending 
to  interfere  with  the  duty  of  the  railroad  to  serve  the  public.'* 

7  2  Sedgwick  v.  Stanton,  14  N.  T.  289;  Burbridge  v.  Fackler,  2  MacArthnr 
(9  D.  C.)  407;  Painter  v.  I>rum,  40  Pa.  4G7.  ante,  p.  357.  Contract  to  procure 
by  legitimate  means  a  pardon,  commutation  of  sentence,  etc.,  in  a  proper 
case.  Note  65,  supra.  See  "Contracts,"  Dec.  Dig-.  (Key-No.)  §  131;  Cent. 
Dig.  §§  594-607. 

7  3  "Any  contract  which  will  disable  a  public  or  quasi  public  corporation 
from  performing  the  duty  which  it  has  undertaken,  or  which  has  been  im- 
posed upon  it,  for  the  public  weal,  or  compels  it  to  make  the  public  accom- 
modation or  convenience  subservient  to  its  private  interests,  is  void."  Greenh. 
Pub.  Pol.  rule  2G9 ;  Chicago  Gas-Light  &  Coke  Co.  v.  Coke  Co.,  121  111.  530, 
13  N.  E.  169,  2  Am.  St.  llep.  124;  Doane  v.  Railway  Co.,  160  111.  22,  45  N. 
E.  507,  35  L.  R.  A.  588;  South  Chicago  City  Ry.  Co.  v.  Railway  Co.,  171 
111.  391,  49  N.  E.  576;  West  Va.  Transportation  Co.  v.  Ohio  River  Pipe  Line 
Co.,  22  W.  Va.  600,  46  Am.  Rep.  527 ;  Charleston  Natural  Gas  Co.  v.  Kanawha 
Natural  Gas,  Light  &  Fuel  Co.,  58  W.  Va.  22,  50  S.  E.  876,  112  Am.  St.  Rep. 
036,  6  Ann.  Cas.  154.  The  same  doctrine  has  been  applied  so  as  to  render 
void  a  contract  by  the  pi'oprietors  of  a  hotel  by  which  a  telephone  company 
was  given  the  exclusive  right  to  install  telephones  in  the  hotel.  Central  New 
York  Telephone  &  Telegraph  Co.  v.  Averill,  55  Misc.  Rep.  346,  105  N.  Y.  Supp. 
378  [affirmed  199  N.  Y.  128,  92  N.  E.  206,  32  L.  R.  A.  (N.  S.)  494,  139  Am.  St. 
Rep.  878].  See  "Contracts;'  Dec.  Dig.  {Key-No.)  §  115,  123;  Cent.  Dig.  §§ 
5Ji2-552,  570-575. 

74  Cumberland  Valley  R.  Co.  v.  Baab,  9  Watts  (Pa.)  458,  36  Am.  Dec.  132; 
St  Joseph  &  D.  C.  R.  Co.  v.  Ryan,  11  Kan.  602,  15  Am.  Rep.  357 ;  St.  Louis, 
J.  &  C.  R.  Co.  V.  Mathers,  71  111.  592,  22  Am.  Rep.  122;  Id.,  104  111.  257; 
Williamson  v.  Railroad  Co.,  53  Iowa,  126,  4  N.  W.  870,  36  Am.  Rep.  206; 
Florida,  C.  &  P.  R.  Co.,  v.  State,  31  Fla.  482,  13  South.  103,  20  L.  R.  A.  419, 
34  Am.  St.  Rep.  30.  See  "Railroads,"  Dec.  Dig.  (Keu-No.)  §§  46,  58;  Cent. 
Dig.  §§  105,  130-136. 


§    156)  AGREEMENTS  CONTRARY  TO   PUBLIC   POLICY  359 

In  like  manner,  contracts  by  officers  or  agents  of  a  railroad 
company,  or  by  other  individuals,  under  the  assumption  of  influ- 
ence with  the  company,  for  compensation  to  them  for  the  exercise 
of  their  influence  in  favor  of  a  particular  location  of  route  pr 
station,  is  void,  as  tending  to  perpetrate  a  fraud  on  the  company 
and  to  prevent  the  most  efficient  service  to  the  public.'"  Some 
courts  have  even  gone  so  far  as  to  hold  that  any  contract  by  a 
railroad  company  for  the  construction  of  its  line  along  a  particular 
route  or  the  establishment  of  a  station  at  a  particular  place  is 
void  as  tending  to  interfere  with  its  free  choice  from  the  sole 
standpoint  of  the  public  interest/® 

On  principle,  however,  and  by  the  decided  weight  of  authority, 
a  contract  of  a  railroad  company  is  valid  by  which,  in  return  for 
the  subscription  of  stock,  conveyance  of  land,  or  other  consider- 
ation, it  agrees  merely  to  build  along  a  particular  line  or  to  estab- 
lish a  station  at  a  particular  place,  but  not  to  the  exclusion  of 
other  routes  or  locations.''^ 

So,  also,  any  other  agreement  by  a  railroad  company  or  other 
corporation  chartered  as  a  common  carrier,  or  for  other  quasi 
public  purposes,  as  in  the  case  of  water  or  gas  companies,  by  which 
it  prevents  itself  from  performing  the  duties  which  it  owes  to  the 

T8  Woodstock  Iron  Co.  v.  Extension  Co.,  129  IT.  S.  643,  9  Sup.  Ct.  402,  S2 
L.  Ed.  819 ;  Holladay  v.  Patterson,  5  Or.  182 ;  Bestor  v.  Wathen,  60  111.  138 ; 
Reed  v.  Johnson,  27  Wash.  42,  G7  Pac.  381,  57  L.  R.  A.  404.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  J 21;   Cent.  Dig.  §  495. 

TO  Fuller  v.  Dame,  18  Pick.  (Mass.)  472;  Bumey's  Heirs  v.  Ludeling,  47 
La.  Ann.  73,  16  South.  507;  Ford  v.  Oregon  Electric  Ey.  Co.,  60  Or.  278,  117 
Pac.  809,  36  L.  R.  A.  (N.  S.)  358.  See  *' Railroads,"  Dec.  Dig.  {Key-No.)  §  ^C; 
Cent.  Dig.  %  105. 

T7  McCowen  v.  Pew,  153  Cal.  735,  96  Pac.  893,  21  L.  R.  A.  (N.  S.)  800,  15 
Ann.  Cas.  630;  Baltimore,  etc.,  R.  Co.  v.  Ralston,  41  Ohio  St.  587;  Cumber- 
land Valley  R.  Co.  v.  Baab,  9  Watts  (Pa.)  458,  36  Am.  Dec.  132;  Farrington 
V.  Stucky,  165  Fed.  325,  91  C.  C.  A.  311 ;  Griswold  v.  Minneapolis,  St.  P.  &  S. 
S.  M.  Ry.  Co.,  12  N.  D.  435,  97  N.  W.  538,  102  Am.  St.  Rep.  572 ;  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Sumner,  106  Ind.  55,  5  N.  E.  404,  55  Am.  Rep.  719; 
Swartwout  v.  Railroad  Co.,  24  Mich.  389;  First  Nat.  Bank  v.  Ilendrie,  49 
Iowa,  402,  31  Am.  Rep.  153 ;  Harris  v.  Roberts,  12  Neb.  631,  12  N.  W.  89,  41 
Am.  Rep,  779;  International  &  G.  N.  Ry.  Co.  v.  Dawson,  62  Tex.  260;  Texas 
&  St.  L,  R.  Co.  V.  Robards,  60  Tex.  545,  48  Am.  Rep.  268 ;  Telford  v.  Rail- 
road Co.,  172  111.  559,  50  N.  E.  105;  Lyman  v.  Railroad  Co.,  190  111.  320,  60  N. 
E.  515,  52  L.  R.  A.  615.  "If  the  law  were  otherwise,  it  would  be  equivalent 
to  a  declaration  that  a  community  desiring  the  advantages  of  a  line  of  rail- 
way, where  chartered  privileges  permit  its  construction,  would  be,  under  the 
law,  prevented  and  prohibited  from  inducing  such  construction  by  aiding 
the  same."  Piper  v.  Choctaw  Northern  Townsite  &  Imp.  Co.,  16  Okl.  436,  85 
Pac.  965.  See  ''Railroads;'  Dec.  Dig.  (Key-No.)  §S  46-58;  Cent.  Dig.  §§ 
109,  133;   "Contracts,"  Dec.  Dig.  (Key-No.)  §  123;    Cent.  Dig.  §§  570-575. 


3G0  LEGALITY   OF  OBJECT  (Cll.  8 

public,  is  void/'  A  combination,  therefore,  between  two  railroad 
companies  owning  competing  lines,  by  which  one  line  is  to  be- 
discontinued  or  leased  to  the  other,  will  not  be  sustained/'  This 
principle,  it  has  been  said,  does  not  apply  to  individuals  engaged 
in  the  business  of  common  carriers.  The  owner  of  one  line  of 
steamers,  it  has  been  held,  may  make  a  contract  with  an  individ- 
ual owner  of  a  competing  line,  by  which  the  latter  is  to  discon- 
tinue his  vessels. *" 

Under  this  head  may  also  be  mentioned  contracts  by  which  a 
common  carrier  or  other  quasi  public  corporation  makes  an  undue 
discrimination  in  favor  of  a  particular  person.  Such  a  contract 
is  not  only  generally  prohibited  by  statute,  but  is  contrary  to 
public  policy  independently  of  any  statutory  provision  on  the 
subject.^^  Of  this  nature,  for  example,  are  contracts  by  railroad 
companies  for  "rebates"  to  particular  shippers. ^^  And,  by  the 
weight  of  authority,  a  contract  by  which  a  railroad  company  grants 
a  telegraph  company  the  exclusive  privilege  of  operating  a  tele- 

T8  Central  Transp.  Co.  v.  Palace-Car  Co.,  139  U.  S.  24,  11  Sup.  Ct  478, 
35  1j.  Ed.  55;  York  &  M.  Line  R.  Co.  v.  Wlnans,  17  How.  31,  15  L.  Ed.  27; 
Peoria  &  R.  I.  R.  Co.  v.  Mining  Co.,  68  111.  4S9;  Gibbs  v.  Gas  Co.,  130  U. 
S.  396,  9  Sup.  Ct.  553,  32  L.  Ed.  979;  Peters  v.  Rylands,  20  Pa.  497,  59  Am. 
Dec.  746;  State  v.  Railroad  Co.,  29  Conn.  538;  Denver  &  N.  O.  R.  Co.  v. 
Railroad  Co.  (C.  C.)  15  Fed.  650.  See,  also,  Chicago,  I.  &  L.  Ry.  Co.  v. 
Southern  Indiana  Ry.  Co.  (Ind.  App.)  70  N.  E.  843,  holding  that  a  contract 
between  two  railroad  companies  by  which  one  agrees  not  to  furnish  sidings 
to  stone  quarries  near  its  line  is  illegal  and  void.  A  contract  by  a  railroad 
company  for  the  construction  and  maintenance  of  a  spur  track  for  the  benefit 
of  another  corporation  or  an  individual  is  not  void  if  the  performance  of 
the  contract  does  not  interfere  with  any  of  the  company's  duties  to  the  public. 
McKell  V.  Chesapeake  &  O.  Ry.  Co..  1S6  Fed.  39.  108  C.  C.  A.  141  [affirming 
175  Fed.  321,  99  C.  C.  A.  109,  20  Ann.  Cas.  1097] ;  Riley  v.  Louisville,  H.  & 
St.  L.  Ry.  Co.,  142  Ky.  67,  133  S.  W.  971,  35  L.  R.  A.  (N.  S.)  036,  Ann. 
Cas.  1912D,  2.30.  See  "Contracts:'  Dec.  Dig.  {Key-No.)  U  116,  123;  Cent. 
Dig.  §§  51,2-552,  570-575. 

7  8  Thomas  v.  Railroad  Co.,  101  U.  S.  71,  25  L.  Ed.  950;  Greenh.  Pub. 
Pol.  p.  818  (collecting  cases) ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Morris,  67  Tex. 
692,  4  S.  W.  156.  This  is  expressly  prohibited  or  regulated  by  statute  in 
most  states.  See  "Railroads;'  Dec.  Dig.  (Key-No.)  §§  119-121,  136,  137;  Cent. 
Dig.  §§  S76-S85,  43-i,  435. 

80  Leslie  v.  Lorillard,  110  N.  Y.  519,  18  N.  E.  363,  1  L.  R.  A.  456.  But 
see  Anderson  v.  Jett,  89  Ky.  375,  12  S.  W.  670,  6  L.  R.  A.  390.  See  "Con- 
tracts," Dec.  Dig.   (Key-No.)  §§  117,  123;    Cent.  Dig.  §§  55.'f-575. 

«i  Indianapolis,  D.  &  S.  R.  Co.  v.  Ervin,  118  111.  250,  8  N.  E.  862,  59  Am. 
Rep.  369 ;  Scofield  v.  Railroad  Co.,  43  Ohio  St  571,  3  N.  E.  907,  S4  Am.  Rep. 
846;  Chesapeake  &  P.  Telephone  Co.  v.  Telegraph  Co.,  66  Md.  399,  7  Atl. 
809,  59  Am.  Rep.  167.  See  "Cairiers,"  Dec.  Dig.  (Key-No.)  §  199;  Cent.  Dig. 
§§   901-905. 

82  See  cases  cited  supra,  note  81. 


§    156)  AGREEMENTS   COXTIIARY   TO   PUBLIC   POLICY  3G1 

graph  along  the  line  of  its  road  is  contrary  to  public  policy  and 
void.*' 

Agreements  Affecting  the  Government,  etc. 

There  are  many  agreements  which,  though  not  tending  to  injure 
the  public  service,  injuriously  affect  the  government  itself  in  some 
other  way,  and  which  are  therefore  illegal,  as  contrary  to  public 
policy.**  These  agreements  are  collected  by  Greenhood,®®  and 
may  be  shortly  stated  as  follows:  (1)  Agreements  contemplat- 
ing the  appropriation  of  public  money  for  purposes  not  sanc- 
tioned by  law.*^  (2)  Agreements  which  seek  to  secure  to 
strangers  a  gratuity  which  the  public  has  offered  for  services  ren- 
dered ;  as  in  the  case  of  an  agreement  to  secure  to  a  stranger 
bounties  offered  by  the  government  for  military  services.*^  (3) 
Agreements  which  seek  to  secure  to  a  stranger  the  benefit  of  a 
privilege  granted  by  the  government  to  the  promisor;  as,  for 
instance,  where  a  person  who  has  received  from  the  government 
a  license  to  trade  with  the  Indians  agrees  for  a  consideration  to 
share  the  profits  with  a  stranger.**  (4)  Agreements  with  an  alien 
enemy.*® 

An  agreement, ,  the  object  or  natural  tendency  of  which  is  to 

8  3  Georgia  R.  &  Banking  Co.  v.  Atlantic  Postal  Telegraph  Cable  Co.  (C.  C.) 
152  Fed.  991 ;  Western  Union  Telegraph  Co.  v.  Telegraph  Co.,  65  Ga.  160,  38 
Am.  Rep.  781.  Contra,  Western  Union  Telegraph  Co.  v.  Railroad  Co.,  86  111. 
246,  29  Am.  Rep.  28;  Canadian  Pac.  R.  Co.  v.  Telegraph  Co.,  17  Can.  S.  C. 
R.  151.  See  "Contracts,"  Dec^  Dig.  {Key-No.)  §§  116,  123;  Cent.  Dig.  §§  542- 
652,  570-575. 

8  4  Fisher  Electric  Co.  v.  Iron  Works,  116  Mich.  293,  74  N.  W.  493.  "Con- 
tracts which  take  advantage  of  the  depreciation  of  the  national  currency,  or 
which  contemplate  speculation  on  such  depreciation,  are  valid."  Greenh. 
Pub.  Pol.  rule  305,  p.  370 ;  Cox  v.  Smith,  1  Nev.  161,  90  Am.  Dec.  476.  Agree- 
ments for  the  purchase  and  sale  of  gold.  Brown  v.  Speyers,  20  Grat  (Va.) 
296;  Cooke  v.  Davis,  53  N.  Y.  318;  Cameron  v.  Durkheim,  55  N.  Y.  425; 
Peabody  v.  Speyers,  56  N.  Y.  230.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
123;    Cent.  Dig.  §§  570-575. 

8  5  Greenh.  Pub.  Pol.  rules  302-315. 

86  Capehart  v.  Rankin,  3  W.  Va.  571,  100  Am.  Dec.  779.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  §  103;    Cent.  Dig.  §§  -^68-^76. 

87  Decker  v.  Saltsman,  1  Ilun  (N.  Y.)  421.  See  "Bounties,"  Dec.  Dig. 
{Key-No.)  §  i;    Cent.  Dig.  §§  1-35. 

88  Gould  V.  Kendall,  15  Neb.  549,  19  N.  W.  483.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  i  105;    Cent.  Dig.  §§  J,80-/,S7. 

8»  Ante,  p.  182.  See  Greenh.  Pub.  Pol.  rules  306-315.  "It  was  a  principle 
of  the  common  law  that  trading  with  an  enemy,  without  the  king's  license, 
was  illegal  in  British  subjects."  Potts  v.  Bell,  8  Term  R.  548.  Some  writers 
class  such  agreements  among  those  in  breach  of  exiiress  rules  of  the  common 
law.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  i  132;    Cent.  Dig.  §§  6C2-6S0. 


362  LEGALITY   OP   OBJECT  (Ch.  8 

diminish  competition  among  the  applicants  or  bidders  for  a  public 
contract  or  for  a  public  franchise,  is  illegal  as  against  public 
policy.®* 


SAME— AGREEMENTS    PROMOTIVE    OF    NONOFFICIAL 

CORRUPTION  " 

157.  The  illegal  agreements  which  may  be  classified  under  this 
head  are: 

(a)  Agreements  by  a  private  citizen  to  violate  a  duty  which  he 

owes  to  the  public. 

(b)  Agreements  tending  to  impair  the  integrity  of  public  elec- 

tions. 

Among  the  agreements  which  may  be  treated  under  the  first 
head,  and  which  are  deemed  contrary  to  public  policy  and  illegal, 
are  agreements  in  consideration  of  a  person's  forbearing  to  peti- 
tion for  the  repeal  of  a  public  law,®^  or  to  oppose  on  public 
grounds  any  measure  or  proceeding  before  a  legislative  body,^^ 
agreements  tending  to  suppress  inquiry  by  the  legislature  into 
matters  of  public  concern,®*  agreements  in  consideration  of  a  per- 
son's opposing  ^^  or  of  his  approving  or  not  opposing  a  public 
improvement  or  other  public  project,®*  or  withdrawing  his  peti- 
tion for  such  an  improvement.®'' 

BoMcMullen  v.  Hoffman.  174  U.  S.  639,  19  Sup.  Ct.  839,  43  L.  Ed.  1117; 
Boyle  V.  Adams,  50  Minn.  255,  52  N.  W.  SfiO,  17  L.  R.  A.  9G;  Conway  v.  Post 
Co.,  190  111.  89,  CO  N.  E.  82 ;  Baird  v.  Sheehan,  38  App.  Div.  7,  56  N.  Y.  Supp. 
228,  affirmed  166  N.  Y.  631,  60  N.  B.  1107 ;  Pendleton  v.  Asbury,  104  Mo.  App. 
723,  78  S.  AV.  651.  See,  also,  Kine  v.  Turner,  27  Or.  356,  41  Pac.  664.  Cf. 
Hyer  v.  Traction  Co.,  168  U.  S.  471,  18  Sup.  Ct  115,  42  L.  Ed.  547;  ante,  p. 
318.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  132;  Cent.  Dig.  §§  659-661. 

»i  Greenh.  Pub.  Pol.  p.  383. 

9  2  Reed  V.  Warehouse  Co.,  2  Mo.  App.  82.  See  "Contracts"  Dec.  Dig.  {Key- 
No.)  §  126;    Cent.  Dig.  §§  5S6-593. 

»3  Pingry  v.  Washburn,  1  Aikens  (Vt.)  264,  15  Am.  Dec.  676.  This  rule  does 
not  apply  to  opposition  to  private  legislation  on  purely  private  grounds. 
Greenh.  Pub.  Pol.  rule  317,  p.  3§4.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  126; 
Cent.  Dig.  §§  5S6-593. 

84  Usher  v.  McBratney,  3  Dill.  385,  Fed.  Cas.  No.  16,805.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  §  126;   Cent.  Dig.  §§  586-693. 

8  6  Slocum  V.  Wooley,  43  N.  J.  Eq.  451,  11  Atl.  264.  See  "Contracts,"  Dec. 
Dig.   {Key-No.)  §  131;    Cent.  Dig.  §§  594-607. 

88  Hovpard  v.  Independent  Church,  18  Md.  451;  Maguire  v.  Smock,  42  Ind. 
1,  13  Am.  Rep.  353 ;    Smith  v.  Applegate,  23  N.  J.  Law,  352 ;    Doane  v.  Rail- 

87  Jacobs  V.  Tobiason,  65  Iowa,  245,  21  N.  W.  590,  54  Am.  Rep.  9.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  131;   Cent.  Dig.  §§  59Jf-607. 


§    157)  AGREEMENTS  CONTRARY  TO  PUBLIC   POLICY  363 

Any  agreement  which  tends  to  impair  the  integrity  of  public 
elections  is  clearly  contrary  to  public  policy.*®  "Every  voter  is 
bound  to  use  his  influence  to  promote  the  public  good  according 
to  his  own  honest  opinions  and  convictions  of  duty,  and  if,  for 
money  or  other  personal  profit,  he  agrees  to  exert  his  influence 
against  what  he  believes  to  be  for  the  public  good,  he  is  corrupt, 
and  the  agreement  void."  '"  A  promise,  therefore,  in  consideration 
of  the  promisee's  voting  for  the  promisor  for  a  public  office,^  or 
procuring  his  nomination,^  or  aiding  in  procuring  his  election,* 
,or  of  withdrawing  himself  as  a  candidate  for  election,*  or  a  prom- 
ise to  pay  money  if  a  certain  candidate  shall  be  elected,  is  illegal 
and  void.  A  bet  on  the  result  of  an  election  is  illegal  even  in  the 
absence  of  a  statutory  prohibition."* 

way  Co.,  IGO  111.  22,  45  N.  E.  507,  35  L.  R.  A.  588 ;  Greer,  Hawes  &  Co.  v.  Sever- 
son,  119  Iowa,  84,  93  N.  W.  72  (consent  of  property  holder  required  by  statute 
to  establishment  of  saloon).  Where  the  opposition  is  on  purely  private  grounds, 
it  has  been  held  that  the  rule  does  not  apply.  Weeks  v.  Lippencott,  42  Pa. 
474.  Cf.  Montclair  Military  Academy  v.  Railway  Co.,  65  N.  J.  Law,  328,  47 
Atl.  890.    See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  131;  Cent.  Dig.  §§  594-607. 

98  A  person  who  furnishes  liquor  or  refreshments  to  electors  at  the  request 
of  another,  for  the  purpose  of  influencing  them  in  their  votes,  cannot  recover 
therefor.  Duke  v.  Asbee,  33  N.  C.  112;  Greenh.  Pub.  Pol.  p.  389.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  124;  Cent.  Dig.  §§  576-5S5. 

89  Nichols  V.  Mudgett,  32  Vt.  546;  Roby  v.  Carter,  6  Tex.  Civ.  App.  295,  25 
S.  W.  725 ;  Burden  Bank  v.  Phelps,  5  Kan.  App.  685,  48  Pac.  938.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  124;   Cent.  Dig.  §§  576-5S5. 

1  Nichols  v.  Mudgett,  32  Vt.  54G ;  ante,  p.  358.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  124;   Cent.  Dig.  §§  576-585. 

2  Liness  v.  Hesing,  44  111.  113,  92  Am.  Dec.  153 ;  LIVINGSTON  v.  PAGE,  74 
Vt.  356,  52  Atl.  965,  59  L.  R.  A.  336,  93  Am.  St.  Rep.  901,  Throckmorton  Cas. 
Contracts,  246  (to  use  influence  of  newspaper  to  secure  nomination).  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  124;   Cent.  Dig.  §§  576-585. 

3  Stout  V.  Ennis,  28  Kan.  706 ;  Swayze  v.  Hull,  8  N.  J.  Law,  54,  14  Am. 
Dec.  399;  Ham  v.  Smith,  87  Pa.  63.  This  does  not  apply  to  "an  agreement 
to  pay  for  open  advocacy  of  the  election  of  a  candidate,  or  for  legitimate  po- 
litical work."  Greenh.  Pub.  Pol.  393;  Murphy  v.  English,  64  IIow.  Prac.  (N. 
Y.)  362;  Sizer  v.  Daniels,  66  Barb.  (N.  Y.)  426.  -See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  124;  Cent.  Dig.  §|  576-585. 

*  Robinson  v.  Kalbfleisch,  5  Thomp.  &  C.  (N.  Y.)  212.  Bee  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  124;    Cent.  Dig.  §§  576-585. 

BLockhart  v.  Hullinger,  2  111.  App.  465;  Gordon  v.  Casey,  23  111.  70;  Guy- 
man  V.  Burlingame,  36  111.  201 ;  Vischer  v.  Yates,  11  Johns.  (N.  Y.)  23 ;  Mc- 
Allister v.  Hoffman,  16  Serg.  &  R.  (Pa.)  147,  16  Am.  Dec.  556;  Wroth  v. 
Johnson,  4  Har.  &  McH.  (Md.)  284;  Gregory  v.  King,  58  111.  169,  11  Am.  Rep. 
50  (bet  in  one  state  on  result  of  presidential  election  in  another) ;  Greenh, 
Pub.  Pol.  391.    See  "Coming,"  Dec.  Dig.  (Key-No.)  §  5/   Cent.  Dig.  §  IS. 


3G4  LEGALITY  OF   OBJECT  (Ch.  8 

SAME— AGREEMENTS  TENDING  TO  PERVERT  OR  OB- 
STRUCT   PUBLIC   JUSTICE 

158.  Any   agreement   which   tends  to   pervert   or   obstruct  public^ 

justice  is  contrary  to  public  policy,  and  void.  >"'^'  '^^fl 

159.  COMPOUNDING  CRIME.     An  agreement  to  stifle  a  crim- 

inal prosecution  is  illegal. 

160.  ARBITRATION.     Agreements  to  refer  matters  to  arbitra- 

tion as  a  condition  precedent  to  suit,  at  least  if  not  going 
to  the  whole  question  of  liability,  are  valid;  but  it  is 
otherwise  where  the  agreement  is  to  refer  to  arbitration 
alone,  and  not  to  sue  at  all.  ^  tJ-'^ 

Any  agreement  which  tends  to  pervert  or  obstruct  public 
justice,  even  though  it  may  not  amount  to  a  crime,*  is  illegal, 
as  being  contrary  to  public  policy.  If  an  agreement,  for  instance, 
tends  to  induce  a  witness  to  perjure  himself,  or  to  give  false  tes- 
timony through  bias,  or  if  it  tends  to  induce  parties  to  procure 
false  testimony,  it  will  not  be  enforced/  In  an  Alabama  case  a 
party  had  promised  to  give  a  witness,  for  attending  court,  a 
sum  of  money  in  excess  of  his  legal  fees,  the*  amount  of  the  com- 
pensation to  depend  on  the  promisor's  success  in  the  suit,  and 
the  agreement  was  held  void.  "Such  contracts,"  said  the  court, 
"are  against  sound  policy,  because  their  inevitable  tendency  is. 
if  not  to  invite  to  perjuiy,  at  least  to  sway  the  mind  of  the  witness, 
by  giving  him  the  interest  of  a  party  to  the  cause,  and  thus  con- 
taminate the   stream   of  justice   at  its  source."  *      For  the   same 

•  Clark,  Cr.  Law  (2d  Ed.)  148,  376,  and  cases  citod;  Buck  v.  Bank,  27 
Mich.  293,  1.5  Am.  Rep.  ISO.  Agreement  for  feigned  suit  to  test  validity  of 
bounds  before  issue.  Van  Horn  v.  Kittitas  County  (C.  C.)  112  Fed.  1.  Agree- 
ment by  a  lawyer  for  an  additional  fee  if  he  succeeded  in  suspending  the  en- 
forcement or  operation  of  a  criminal  statute.  Arlington  Hotel  Co.  v.  Ewing, 
124  Tenn.  536,  138  S.  W.  954,  38  L.  R.  A.  (N.  S.)  842,  Ann.  Cas.  1913A,  121. 
See  "Contracts,"  Dec.  Dig.  (Key-^S^o.)  §  129;   Cent.  Dig.  §§  616-6.32. 

7  Gillet  V.  Logan  Co.,  G7  111.  256 ;  Goodrich  v.  Tenney,  144  111.  422.  33  N.  E. 
44,  19  L.  R.  A.  371,  36  Am.  St  Rep.  459 ;  Patterson  v.  Donner,  48  Cal.  369 ; 
Greenh.  Pub.  Pol.  p.  441,  and  cases  cited;  Hutley  v.  Hutley,  L.  R.  8  Q.  B.  112; 
Paton  V.  Stewart,  78  111.  481;  Bowling  v.  Blum  (Tex.  Civ.  App.)  52  S.  W.  97; 
Langdon  v.  Conlin,  67  Neb.  243,  93  N.  W.  389,  60  L.  R.  A.  429,  108  Am.  St 
Rep.  643,  2  Ann.  Cas.  834 ;  Neece  v.  Joseph,  95  Ark.  552,  129  S.  W.  797,  30 
L.  R.  A.  (N.  S.)  278,  Ann.  Cas.  1912A,  655.  A  contract  to  procure  such  testi- 
mony as  will  procure  a  verdict  is  void.  Quirk  v.  Muller,  14  Mont  467,  36  Pac. 
1077,  25  L.  R.  A.  87,  43  Am.  St  Rep.  647.  See  ''Contracts,"  Dec.  Dig.  (Key- 
No.)  §  129;   Cent.  Dig.  §§  616-632. 

8  Dawkins  v.  Gill,  10  Ala.  206.     There  are  many  cases  which  hold  that  an 


§§    158-160)       AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  365 

reason  a  contract  is  void  by  which  an  injured  person  agrees  to 
pay  his  physician  a  portion  of  any  amount  recovered  by  him  for 
the  injury.®  So,  also,  agreements  are  illegal  if  they  contemplate 
the  suppression  of  lawful  evidence. ^°  And  a  contract  between  a 
lawyer  and  a  layman  by  which  the  latter  -is  to  hunt  up  cases  and 
bring  them  to  the  lawyer  in  consideration  of  a  portion  of  the  fees 
is  void.^^ 

A  contract  by  a  principal  in  a  bail  bond  in  a  criminal  case  to 
indemnify  his  surety  has  been  declared  void  in  some  jurisdictions, 
on  the  ground  that  "it  gives  the  public  the  security  of  one  person 
only,  instead  of  two";^-  in  other  jurisdictions  however,  such 
contracts  have  been  sustained.^*  And  the  courts  are  agreed  that 
a  contract  by  a  third  person  to  indemnify  the  surety  is  valid,  for 
here  the  public  still  has  the  security  of  two  persons.^* 

All  agreements,  it  is  said  in  a  late  Indiana  case,  relating  to  pro- 
ceedings in  courts,  civil  or  criminal,  which  may  involve  anything  in- 
consistent with  the  impartial  course  of  justice,  are  void,  though  not 
open  to  the  charge  of  actual  corruption,  and  regardless  of  the  good 
faith  of  the  parties,  or  of  the  fact  that  no  evil  resulted  therefrom. ^^ 

agreement  by  a  party  to  pay  a  witness  compensation  in  addition  to  his  legal 
fees  is  contrary  to  public  policy.  See  Greenh.  Pub.  Pol.  p.  441.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  129;    Cent.  Dig.  §§  616-632. 

9  Sherman  v.  Burton,  165  Mich.  293,  130  N.  W.  667,  33  L.  R  A.  (N.  S.)  87; 
Thomas  v.  Caulkett,  57  Mich.  392,  24  N.  W.  154,  58  Am.  Rep.  369.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  129;   Cent.  Dig.  §§  616-632. 

10  Greenh.  Pub.  Pol.  p.  441.  As,  where  an  attorney  for  a  consideration 
agrees  with  a  person  accused  of  crime  to  procure  the  release  from  .iail  of  a 
witness  against  him.  Crisup  v.  Grosslight,  79  Mich.  380,  44  N.  W.  621.  And 
see  Bostick  v.  McClaren,  2  Brev.  (S.  C.)  275;  Badger  v.  Williams,  1  D.  Chip. 
(Vt)  137 ;  Thompson  v.  Whitman,  49  N.  C.  47 ;  Young  v.  Thomson,  14  Colo. 
App.  294,  59  Pac.  1030.  Regulating  disclosure  of  witness.  Wight  v.  Rindskopf, 
43  Wis.  344.  Asserting  unjust  claims.  Rhodes  v.  Sparks,  6  Pa.  473.  Contract 
for  a  consideration  to  induce  witness  to  leave  the  state  and  remain  away. 
Small  V.  Lowrey,  166  Mo.  App.  lOS,  148  S.  W.  132.  See  "Contracts"  Dec.  Dig. 
(Key-No.)  §  129;   Cent.  Dig.  §§  616-632. 

11  Holland  v.  Sheehan,  108  Minn.  362,  122  N.  W.  1,  23  L.  R.  A.  (N.  S.)  510 
17  Ann.  Cas.  687.  -See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  129;  Cent.  Dig.  §§ 
116-132;  "Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig. 
i35. 

12  United  States  v.  Greene  (C.  C.)  163  Fed.  442.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  129;    Cent.  Dig.  §§  616-632. 

13  Moloney  v.  Nelson,  158  N.  Y.  351.  53  N.  E.  31;  Essig  v.  Turner.  60  Wash. 
175,  110  Pac.  998;  Carr  v.  Davis,  64  W.  Va.  522,  63  S.  E.  326,  20  L.  R.  A.  (N. 
S.)  58,  16  Ann.  Cas.  1031.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  129;  Cent. 
Dig.  §§  616-632. 

1*  United  States  v.  Greene  (C.  C.)  163  Fed.  442;  Essig  v.  Turner,  60  Wash. 
375,  110  Paa  998.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  129;  Cent.  Dig.  §§ 
616-632. 

i«  Brown  v.  Bank,  137  Ind.  165,  37  N.  E.  158,  24  L.  R.  A.  206  (contract  mad^ 


366  LEGALITY   OF  OBJECT  (Ch.  8 

So,  also,  it  is  to  the  interest  of  the  public  that  litigants  should  be 
free  to  settle  their  disputes,  and  a  contract  between  an  attorney  and 
client,  by  which  the  client  is  forbidden  to  settle  his  cause  of  action 
without  consent  of  the  attorney,  is  contrary  ta  public  policy  and 
void.^® 

Compounding  Crime 

The  most  obvious  example  of  agreements  tending  to  obstruct 
public  justice  are  agreements  to  stifle' criminal  prosecutions.  "You 
shall  not  make  a  trade  of  a  felony.  If  you  are  aware  that  a  crime 
has  been  committed,  you  shall  not  convert  that  crime  into  a  source 
of  benefit  or  profit  to  yourself."  ^'^  Not  only  is  an  agreement  not  to 
prosecute  a  person  for  a  crime  void  on  the  ground  that  it  is  against 
public  policy,  but  it  is  void  because  the  agreement  is  in  itself  a 
crime. ^^  And  the  contract  is  void,  whether  made  with  the  offender 
himself  or  with  another  for  his  benefit.^" 


by  .iustice  of  peace  whereby,  In  case  the  justice  secures  arrest,  and  the  return 
of  stolen  property,  he  is  to  receive  a  percentage).  See  Weber  v.  Shay,  56  Ohio 
St.  116,  46  N.  E.  377,  37  L.  R.  A.  230,  60  Am.  St.  Rep.  743  (contract  by  attor- 
ney to  prevent  indictment).  Contract  to  withdraw  opposition  to  probate  of 
will  not  void.  Seaman  v.  Colley,  178  Mass.  478,  59  N.  E.  1017.  See  "Con- 
tracts:' Dec.  Dig.  (Key-yo.)  §  129;   Cent.  Din.  §§  616-632. 

i«  Burho  V.  Carmichael,  117  Minn.  211,  135  N.  W.  386,  Ann.  Cas.  1913D,  305. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  129;   Cent.  Dig.  §§  616-632. 

17  Williams  v.  Bayley,  L.  R.  1  H.  L.  200.  And  see  Collins  v.  Blantem.  2 
Wils.  341,  1  Smith,  Lead.  ,Cas.  387,  notes ;  Henderson  v.  Palmer,  71  111.  579, 
22  Am.  Rep.  117 ;  Roll  v.  Raguet,  4  Ohio.  400,  22  Am.  Dec.  759 ;  McMahan  v. 
Smith,  47  Conn.  221,  36  Am.  Rep.  67;  Chandler  v.  Johnson.  39  Ga.  85;  Schultz 
V.  Culbertson,  46  Wis.  313,  1  N.  W.  19 ;  Meech  v.  Lee,  82  Mich.  274,  46  N.  W. 
383;  Ricketts  v.  Harvey.  106  Ind.  564,  6  N.  E.  325;  Gorham  v.  Keyes,  137 
Mass.  583 ;  Friend  v.  Miller,  52  Kan.  139,  34  Pac.  397,  39  Am.  St.  Rep.  340 ; 
Smith  V.  Steely,  80  Iowa,  738,  45  N.  W.  912;  Foley  v.  Greene,  14  R.  I.  618, 
51  Am.  Rep.  419 ;  Davis  v.  Smith,  68  N.  H.  253.  44  Atl.  384,  73  Am.  St.  Rep." 
584;  Kirkland  v.  Benjamin,  67  Ark.  480,  55  S.  W.  840;  Smith  Premier  Type- 
writer Co.  V.  Mayhew,  65  Xeb.  65,  90  N.  W,  993.  A  prosecution  for  seduction 
cannot  be  compounded.  Budd  v.  Rutherford,  4  Ind.  App.  386,  30  N.  E.  1111. 
Nor  prosecution  for  obstructing  a  highway.  Amestoy  v.  Transit  Co.,  95  Cal. 
311,  30  Pac.  550.  A  contract  not  to  sue  for  pollution  of  stream,  amounting  to 
public  nuisance,  is  void.  Weston  Paper  Co.  v.  Comstock  (Ind.)  58  N.  E.  79. 
It  makes  no  difference  whether  the  agreement  is  express  or  implied.  Janis 
V.  Roentgen,  52  Mo.  App.  114.  If  no  crime  was  in  fact  committed,  the  contract 
is  not  illegal.  Smith  v.  Blachley,  188  Pa.  550,  41  Atl.  619,  68  Am.  St.  Rep.  887 ; 
Treadwell  v.  Tobert,  122  Ala.  297,  25  South.  216;  Woodham  v.  Allen,  130  Cal. 
194,  62  Pac.  398.  But  see  State  v.  Carver,  69  N.  H.  216,  39  Atl.  973.  See 
"Contracts,"  Dec.  Dig.  (Keg-No.)  §  128;  Cent.  Dig.  §§  683-653. 

18  Clark,  Cr.  Law   (2d  Ed.)  383. 

19  Beal-Doyle  Dry  Goods  Co.  v.  Barton, -80  Ark.  326,  97  S.  W.  58;  Moyer  v. 
Dodson,  212  Pa.  344,  61  Atl.  937.  See  "Cotitracts;'  Dec.  Dig.  (Key-No.)  §  128; 
Cent.  Dig.  §§  633-653. 


§§    158-160)      AGREEMENTS  CONTRARY  TO   PUBLIC   POLICY  SG7 

It  has  been  said  that  this  rule  is  subject  to  exceptions  in  cases 
where  civil  and  criminal  remedies  coexist,  and  that  it  is  permissible 
in  some  cases  to  compromise  with  the  offender,  and  agree  not  to 
prosecute  him.  In  an  English  case  it  was  said:  "We  shall  probably 
be  safe  in  laying  it  down  that  the  law  will  permit  a  compromise  of 
all  offenses,  though  made  the  subject  of  a  criminal  prosecution,  for 
which  offenses  the  injured  party  might  sue  and  recover  damages  in 
an  action.  It  is  often  the  only  manner  in  which  he  can  obtain  re- 
dress. But  if  the  offense  is  of  a  public  nature,  no  agreement  can  be 
valid  that  is  founded  on  the  consideration  of  stifling  a  prosecution 
for  it."  ^^  In  the  United  States  this  distinction  is  not  generally  rec- 
ognized, and  it  is  held  that  an  agreement  to  compound  a  crime, 
whether  misdemeanor  or  felony,  is  illegal. ^^ 

Of  course,  persons  may  always  settle  any  claims  they  may  have 
against  each  other,  even  though  the  claim  may  arise  from  the  crime 
of  one  of  them,  as  from  larceny  or  embezzlement,  provided  there  is 
no  agreement  not  to  prosecute  for  the  crime.^^  It  is  the  stifling  of 
prosecutions  which  renders  such  agreements  invalid.  In  some 
states  parties  are  expressly  permitted  by  statute  to  compromise 
prosecutions  for  certain  misdemeanors.^' 

Reference  to  Arbitration 

Agreements  to  refer  matters  in  dispute  to  arbitration  are  some- 
times regarded  as  attempts  to  "oust  the  jurisdiction  of  the  courts," 
and  to  that  extent  will  not  be  enforced.^*    The  most  common  illus- 

20  Keir  v.  Leeman,  6  Q.  B.  321.  See,  also,  Id.  9  Q.  B.  395;  Windhill  Local 
Board  v.  Vint,  45  Ch.  D.  351.  See  ''Contracts,"  Dec.  Dig.  (Eey-^'o.)  §  12S; 
Cent.  Dig.  §§  633-653. 

21  Partridge  v.  Hood,  120  Mass.  403,  21  Am.  Rep.  524;  Wright  v.  Rindskopf, 
43  Wis.  361;  Pearce  v.  Wilson,  111  Pa.  14,  2  Atl.  99,  56  Am.  Rep.  243;  Jones 
V.  Dannenberg  Co.,  112  Ga.  42G,  37  S.  E.  729,  52  L.  R.  A.  271.  And  see  State 
V.  Carver,  G9  N.  H.  216,  39  Atl.  973.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
12S;   Cent.  Dig.  §§  633-653. 

22  Flower  v.  Sadler,  10  Q.  B.  Div.  572;  Nickelson  v.  Wilson,  60  N.  Y.  362; 
Weber  v.  Barrett,  125  N.  Y.  18,  25  N.  E.  1068 ;  Bothwell  v.  Brown,  51  111.  234 ; 
Cass  County  Bank  v.  Bricker,  34  Neb.  516,  52  N.  W.  575,  33  Am.  St  Rep.  G49 ; 
Fosdick  V.  Van  Arsdale,  74  Mich.  302,  41  N.  W.  931 ;  Portner  v.  Kirschner,  169 
Pa.  472,  32  At)!.  442,  47  Am.  St.  Rep.  925;  Sloan  v.  Davis,  105  Iowa,  97,  74 
N.  W.  922;  Powell  v.  Flanary,  109  Ky.  342,  59  S.  W.  5;  Paige  v.  Hierouymus, 
192  111.  540,  61  N.  E.  832.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  12S;  Cent. 
Dig.  §§  633-653. 

23  Brown  v.  McCreight,  187  Pa.  181,  41  Atl.  45.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  128;   Cetit.  Dig.  §§  633-653. 

2  4  Mutual  Reserve  Fund  Life  Ass'n  v.  Woolen  Mills,  82  Fed.  508,  27  C.  C. 
A.  212.  Agreement  between  fidelity  insurance  company  and  employ6  whose 
honesty  is  guarantied  that  voucher  showing  payment  by  company  to  employer 
of  loss  occasioned  through  employe's  dishonesty  should  be  conclusive  evidence 
against  employe  as  to  fact  and  extent  of  his  liability  to  company,  was  void  as 


368  LEGALITY   OF   OBJECT  (Ch.  8 

trations  of  such  agreements  are  provisions  in  a  building  or  construc- 
tion contract  for  determination  of  questions  by  the  architect  or  en- 
gineer, and  in  insurance  policies  for  submission  to  arbitrators  to 
determine  the  loss,  though  of  course  they  are  not  limited  to  these 
contracts.  An  agreement  to  refer  to  arbitration,  though  so  far  valid 
that  an  action  can  be  maintained  for  its  breach,"  will  not  be  spe- 
cifically enforced,^'  and  does  not  oust  the  jurisdiction  of  the  court; 
that  is,  it  cannot  be  set  up  as  a  bar  to  an  action  brought  to  determine 
the  very  dispute  which  it  was  agreed  to  refer."  Parties  to  a  con- 
tract may,  however,  make  arbitration  a  condition  precedent  to  a 
right  of  action  for  breach  of  the  contract,  and  such  a  condition  is 
valid.\^*  It  is  very  generally  declared  that  an  agreement  to  submit 
to  arbitration  the  whole  question  of  liability,  and  not  merely  those 
questions  which  affect  the  amount  of  damages,  is  void,  even  as  a 

against  public  policy.  Fidelity  &  Casualty  Co.  of  New  York  v.  Eickhoff,  63 
Minn.  170,  65  N.  W.  351,  30  L.  R.  A.  5S6,  56  Am.  St.  Rep.  464 ;  Fidelity  &  Cas- 
ualty Co.  of  New  York  v.  Crays,  76  Minn.  450,  79  N.  W.  531.  Stipulation  in 
contract  entered  into  between  Italian  citizens,  partly  to  be  performed  in  Italy 
and  partly  in  United  States,  that  Italian  courts  should  have  exclusive  juris- 
diction of  actions  thereon,  is  not  so  objectionable,  on  grounds  of  public  policy, 
that  Massachusetts  courts  will  refuse  to  give  it  the  validity  which  it  has  under 
the  Italian  law,  under  the  treaty  with  Italy,  which  gives  citizens  of  each 
country  full  rights  in  the  courts  of  the  other.  Mittenthal  v.  Mascagni,  183 
Mass.  19,  66  N.  E.  425,  GO  L.  R.  A.  812,  97  Am.  St.  Rep.  404.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  127;   Cent.  Dig.  §§  608-615. 

25  Livingston  v.  Railli,  5  El.  &  B.  132;  Munson  v.  Straits  of  Dover  S.  S. 
Co.,  102  Fed.  926,  43  C.  C.  A.  57,  affirming  (D.  C.)  99  Fed.  787.  See  Pollock, 
Cont.  (3d  Ed.)  308.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  127;  Cent.  Dig. 
§§  608-615. 

26  Street  v.  Rigby,  6  Ves.  815,  818.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
127;   Cent.  Dig.  §§  608-615. 

27  Hurst  V.  Litchfield,  39  N.  Y.  377;  Chamberlain  v.  Railroad  Co.,  54  Conn. 
472,  9  Atl.  244 ;  Dugan  v.  Thomas,  79  Me.  221,  9  Atl.  354 ;  White  v.  Railroad 
Co.,  135  Mass.  216 ;  Mentz  v.  Insurance  Co.,  79  Pa.  4S0,  21  Am.  Rep.  80 ;  Reed 
V.  Insurance  Co.,  138  Mass.  572;  Allegre  v.  Insurance  Co.,  6  Har.  &  J.  (Md.) 
408,  14  Am.  Dec.  289 ;  Kinney  v.  Association,  35  W.  Va.  385.  14  S.  E.  8,  15  L. 
R.  A.  142;  Hamilton  v.  Insurance  Co.,  137  U.  S.  370,  11  Sup.  Ct.  133,  34  L. 
Ed.  708 ;  Lesure  Lumber  Co.  v.  Insurance  Co.,  101  Iowa,  514,  70  N.  W.  761 ; 
Voluntary  Relief  Department  v.  Spencer,  17  Ind.  App.  123,  46  N.  E.  477 ;  Miles 
v.  Schmidt,  168  Mass.  339,  47  N.  E.  115;  Fox  v.  Association,  96  Wis.  390,  71 
N.  W.  363;  Mitchell  v.  Dougherty,  90  Fed.  639,  33  C.  C.  A.  205;  Kant  v. 
Rice  (Ky.)  55  S.  W.  202;  Hartford  Fire  Ins.  Co.  v.  Horr,  66  Neb.  555,  92  N. 
W.  746,  60  L.  R.  A.  438,  103  Am.  St.  Rep.  725.  But  see  Raymond  v.  Insurance 
Co.,  114  Mich.  386,  72  N.  W.  254 ;  Robinson  v.  Templar  Lodge,  117  Cal.  370, 
49  Pac.  170,  59  Am.  St.  Rep.  193.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  127; 
Cent.  Dig.  §§  608-615. 

28  Scott  V.  Avery,  5  H.  L.  Cas.  811;  Viney  v.  Rignold,  20  Q.  B.  D.  172; 
President,  etc.,  of  Delaware  &  H.  Canal  Co.  v.  Coal  Co.,  50  N.  Y.  250;  HAM- 
ILTON V.  INSURANCE  CO.,  136  U.  S.  242,  10  Sup.  Ct.  945,  34  L.   Ed.  419. 


§§    158-160)       AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  369 

condition  precedent.'*  Upon  principle,  however,  it  seems  that  such 
a  condition  should  be  given  effect  in  the  one  case  as  in  the  other, 
and  that  to  do  so  is  in  no  sense  to  oust  the  jurisdiction  of  the 
court. ^"^ 

In  the  case  of  mutual  associations,  such  as  mutual  fire  insurance 
companies  and  mutual  benefit  societies,  stipulations  in  the  by-laws 
have  been  sustained  which  require  a  member  to  submit  a  claim  to 
arbitration  or  otherwise  to  exhaust  the  remedies  provided,  as  a 
condition  precedent  to  a  resort  to  the  courts;  *^  and  in  some  juris- 
dictions provisions  have  been  sustained  which  make  the  decision 
of  the  arbitrators  final  and  conclusive.*'' 

Throckmorton  Cas.  Contracts,  251 ;  Holmes  v.  Richet,  56  Cal.  307,  38  Am. 
Rep.  54;  Smith  v.  Railroad  Co.,  36  N.  H.  458;  Hudson  v.  McCartney,  33  Wis. 
331 ;  Phoenix  Ins.  Co.  v.  Badger,  53  Wis.  283,  10  N.  W.  504 ;  Berry  v.  Carter, 
19  Kan.  135;  Reed  v.  Insurance  Co.,  138  Mass.  572;  Hood  v.  Hartshorn,  100 
Mass.  117,  1  Am.  Rep.  89;  Denver  &  N.  O.  Const.  Co.  v.  Stout,  8  Colo.  61,  5 
Pac.  627;  Commercial  Union  Assur.  Co.  v.  Hocking,  115  Pa.  407,  8  Atl.  589, 
2  Am.  St.  Rep.  562;  Fisher  v.  Insurance  Co.,  95  Me.  486,  50  Atl.  282,  85  Am. 
St.  Rep.  428;  National  Contracting  Co.  v.  Water  Power  Co.,  170  N.  T.  439. 
63  N.  E.  450.  But  see  Phoenix  Ins.  Co.  v.  Zlotky,  66  Neb.  584,  92  N.  W.  730. 
See  ''Contracts,"  Dec.  Dig.  (Key-'No.)  %  121 ;    Cent.  Dig.  §§  608-615. 

2  9  See  Stephenson  v.  Insurance  Co.,  54  Me.  55;  Perry  v.  Cobb,  88  Me.  435. 
84  Atl.  278,  49  L.  R.  A.  389 ;  Jones  v.  Brown,  171  Mass.  318,  50  N.  K  648 ; 
Mitchell  V.  Dougherty,  90  Fed.  639,  33  C.  C.  A.  205 ;  J.  G.  Williams  &  Bro.  v. 
Branning  Mfg.  Co.,  154  N.  C.  205,  70  S.  E.  290:  Home  Ins.  Co.  v.  Morse,  87 
U.  S.  (20  Wall.)  445,  22  L.  Ed.  "365 ;  Dunton  v.  Westchester  Fire  Ins.  Co.,  104 
Me.  372.  71  Atl.  1037,  20  L.  R.  A.  (N.  S.)  1058.  See,  also,  cases  cited,  supra 
notes  27,  28.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  127;  Cent.  Dig.  §§  608- 
615. 

30  Scott  V.  Avery,  5  H.  L.  C.  811 ;  Collins  v.  Locke,  4  App.  Cas.  674 ;  Spack- 
man  v.  Plumstead  Board  of  Works,  10  App.  Cas.  229.  See  "Arbitration  as  a 
condition  precedent."  by  Addison  C.  Bamham,  11  Harv.  Law  Rev.  234.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  127';   Cent.  Dig.  §§  608-615. 

81  Jeane  v.  Grand  Lodge,  86  Me.  434,  30  Atl.  70;  Smith  v.  Ocean  Castle  No. 
U,  59  N.  J.  Law,  198,  35  Atl.  917 ;  Whitty  v.  McCarthy,  20  R.  I.  792,  36  Atl. 
129 ;  Myers  v.  Jenkins,  63  Ohio  St.  101,  57  N.  E.  1089,  81  Am.  St.  Rep.  613 ; 
Supreme  Lodge  of  the  Order  of  Select  Friends  v.  Raymond,  57  Kan.  647,  47 
Pac.  533,  49  L.  R.  A.  373.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  127;  Cent. 
Dig.  g§  608-615. 

32  Raymond  v.  Farmers'  Mut.  Fire  Ins.  Co.,  114  Mich.  SS6,  72  N.  W.  254 ; 
Van  Paucke  v.  Society,  63  Mich.  378.  29  N.  W.  863.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  127;    Cent.  Dig.  §§  608-S15. 

Ci-ARK  Cont.(3d  Ed.)— 24 


370  LEGALITY   OF  OBJECT  (Ch.  8 

SAME— ENCOURAGEMENT  OF  LITIGATION— CHAMPER- 
TY AND  MAINTENANCE 

161.  In  most  states  an  agreement  amounting  to  maintenance  or 
■*"■ —  champerty  is  considered  contrary  to  public  policy  because 

of  its  tendency  to  encourage  litigation.     In  some  states, 
however,  the  doctrine  is  scarcely  recognized. 

"Maintenance"  is  defined  as  the  officious  intermeddling  in  a  suit 
by  one  who  has  no  interest  therein,  by  maintaining  or  assisting 
either  party,  with  money  or  otherwise,  to  prosecute  or  defend  it.^^ 
"Champerty"  is  defined  as  a  bargain  by  a  person  with  a  plaintiff 
or  defendant  to  divide  the  land  or  other  matter  sued  for  between 
them  if  they  prevail  at  law,  whereupon  the  champertor  is  to  carry 
on  thr;  party's  suit  or  defense  at  his  own  expense.'*  In  other  words, 
maintenance  is  an  officious  intermeddling  in  a  lawsuit  by  a  mere 
stranger,  and  the  term  is  usually  applied  to  cases  where  such  in- 
termeddling is  without  profit.  Champerty  is  a  species  of  mainte- 
nance, or  "maintenance  aggravated  by  an  agreement  to  have  a  part 
of  the  thing  in  dispute."  ^*  Both  champerty  and  maintenance  were 
recognized  as  crimes  at  common  law  in  England  and  are  so  rec- 
ognized in  many  jurisdictions  in  the  United  States.'®  The  tenden- 
cy, however,  has  been  toward  a  relaxation  of  the  rules  as  to  such 
transactions.  In  many  jurisdictions  neither  maintenance  nor  cham- 
perty is  recognized  as  a  crime,  but  they  are  held  to  render  agree- 
ments illegal  on  the  ground  of  public  policy;  and  in  some  states 
the  doctrine  is  scarcely  recognized  at  all.'^ 

88  4  Bl.  Comm.  134;    1  Hawk.  P.  C.  249. 

84  4  Bl.  Comm.  135;  THOMPSON  v.  REYNOLDS,  73  111.  11,  Throckmorton 
Cas.  Contracts,  254 ;  Smith  v.  Hartsell,  150  N.  C.  71,  63  S.  E.  172,  22  L.  R.  A. 
(N.  S.)  203.  See  "Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  i; 
Cent.  Dig.  §§  1-10. 

35  4  Bl.  Comm.  135;  1  Hawk.  P.  C.  257;  Torrence  v.  Shedd,  112  111.  466; 
Smith  V.  Hartsell.  150  N.  C.  71,  63  S.  E.  172,  22  L.  R.  A.  (N.  S.)  203.  See 
"Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  1;   Cent.  Dig.  §§  1-10. 

36  THOMPSON  V.  REYNOLDS,  73  111.  11,  Throckmorton  Cas.  Contracts,  254. 
See  "Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  9;   Cent.  Dig.  §  21. 

3  7  Richardson  v.  Rowlind,  40  Conn.  565;  Stoddard  v.  Mix,  14  Conn,  12; 
Brown  v.  Bigne,  21  Or.  260,  28  Pac.  11,  14  L.  R.  A.  745,  28  Am.  St.  Rep.  752 ; 
Bayard  v.  McLane,  3  Har.  (Del.)  130;  Schamp  v.  Schenck,  40  N.  J.  Law,  195, 
29  Am.  Rep.  219 ;  Hoffman  v.  Vallejo,  45  Cal.  564 ;  Bentinck  v.  Fi-anklin,  38 
Tex.  458;  Sherley  v.  Riggs,  11  Humph.  (Tenn.)  53.  The  common  law  in  re- 
lation to  champerty  has  been  virtually  abolished  or  superseded  by  statute  in 
several  states.  Wildey  v.  Crane,  63  Mich.  720,  30  N.  W,  327 ;  Heaton  v.  Den- 
nis, 103  Tenn.  155,  52  S.  W.  175;    Potter  v.  Mining  Co.,  22  Utah,  273,  61 


§    ICl)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  371 

The  rules  as  to  champerty  and  maintenance  were  adopted  in  Eng- 
land in  early  times  "in  order  to  prevent  great  and  powerful  persons 
from  enlisting  in  behalf  of  one  party  in  a  lawsuit,  by  which  the  op- 
posite and  feeble  party  would  be  oppressed  and  prevented  from  ob- 
taining justice."  ^^  It  has  been  said  by  English  judges  that,  under 
the  enlightened  and  impartial  administration  of  justice  in  h.ter 
times,  the  object  of  the  law  has  ceased,  and  the  law  itself  has  be- 
come nearly  obsolete.^®  So  it  has  been  said  in  America  thaf,  the 
law  against  maintenance  was  peculiar  to  early  English  society,  and 
inapplicable  to  American  society,  and  therefore  that  it  would  not 
exist  here  unless  by  statute  enacted  here.*"  In  other  jurisdictions, 
however,  the  doctrines  as  to  champerty  and  maintenance  have  been 
held  to  be  in  force,  except  to  the  extent  that  they  have  been  mod- 
ified by  statute.  *^ 
Maintenance 

A  contract  is  illegal  and  void  on  the  ground  of  maintenance 
where  a  stranger  to  a  cause  of  action  agrees  to  sustain  the  expense 
of  prosecuting  or  defending  it.*^ 

Illustrations  of  maintenance  are  where  a  stranger  to  a  cause  of 
action  induces  the  person  who  has  the  right  of  action  to  sue  by 

Pac.  999.  In  New  York  it  is  abolished,  except  in  so  far  as  it  is  embodied  in 
statutes  in  reference  to  certain  cases  affecting  the  title  to  lands,  and  prohibit- 
ing the  purchase  of  claims  by  attorneys  for  the  purpose  of  suing  on  them. 
See  Bundy  v.  Newton,  Go  Hun,  619,  19  N.  Y.  Supp.  734 ;  Fowler  v.  Callan,  102 
N.  Y.  395,  7  N.  E.  169 ;  Coughlin  v.  Railroad  Co.,  71  N.  Y.  443,  27  Am.  Rep. 
75;  Oisher  v.  Lazzarone,  61  Hun,  623,  15  N.  Y.  Supp.  933.  See  "Champertu 
and  Maintenance,"  Dec.  Dig.  {Key-'No.)  §  9;  Cent.  Dig.  §  21. 

38  Breeden  v.  Frankfort  Marine,  Accident  &  Plate  Glass  Ins.  Co.,  220  Mo. 
327,  119  S.  W.  576.  And  see  Smits  v.  Hogan,  35  Wash.  290,  77  Paa  390,  1  Ann. 
Gas.  297.  See  "Champerty  and  Maintenance,^'  Dec.  Dig.  (Key-No.)  §  1;  Cent. 
Dig.  §§  1-10. 

8»  Fiudon  v.  Parker,  11  Mees.  &  TV.  675.  See  "Champerty  and  Maintenance," 
Dec.  Dig.  {Key-^o.)  §  1;  Cent.  Dig.  §§  1-10. 

*o  Smits  V.  Hogan,  35  Wash.  290,  77  Pac.  390,  1  Ann.  Cas.  297,  See  "Cham- 
perty and  Maintenance,"  Dec.  Dig.  {Key-No.)  §  i;  Cent.  Dig.  §§  1-10. 

41  THOMPSON  V.  REYNOLDS,  73  111.  11,  Throckmorton  Cas.  Contracts, 
2M',  Duke  v.  Harper,  66  Mo.  51,  27  Am.  Rep.  314,  in  which  it  is  said,  per 
Henry,  J. :  "The  race  of  intermeddlei-s  and  busybodies  is  not  extinct.  It  was 
never  confined  to  Great  Britain,  and  the  little  band  of  refugees  who  landed 
from  the  Mayflower  on  the  coast  of  New  England  were  not  entirely  free  from 
the  vice  of  intermeddling  in  the  concerns  of  other  people.  It  is  as  prevalent  a 
vice  in  the  United  States  as  it  ever  was  in  England  and  we  do  not  see  but 
that  a  law  restraining  intermeddlers  from  stirring  up  strife  and  litigation  be- 
twixt their  neighbors  is  wholesome  and  necessary,  even  in  Missouri."  See 
"^Shamperty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §§  IS;   Cent.  Dig.  §§  1-10. 

*2  Iiutley  V.  Hutley,  L.  R.  8  Q.  B.  112;  Kerr  v.  Brunton,  24  U.  C.  Q.  B.  390; 
Knox  V.  Martin,  8  N.  H.  154.  And  see  the  cases  in  the  following  notes.  See- 
"Champerty  and  Maintenance,"  Dec.  Dig.  {Key-No.)  §  4;  Cent.  Dig.  §§  4-19. 


372  LEGALITY   OF   OBJECT  (Ch.  8 

promising  to  save  him  harmless  from  any  liability  for  costs,  or  to 
pay  the  costs  in  case  of  failure  in  the  action.*'  It  has  generally 
been  deemed  necessary,  in  order  to  avoid  a  contract,  that  there 
should  be  something  vexatious  in  the  maintenance,  and  that  mere 
assistance  was  not  enough ;  that  maintenance  "is  confined  to  cases 
where  a  man  improperly,  and  for  the  purpose  of  stirring  up  litiga- 
tion and  strife,  encourages  others  either  to  bring  actions  or  to  make 
defenses  which  they  have  no  right  to  make."  **  This  is  probably 
the  general  rule  in  this  country  where  the  doctrine  of  maintenance 
is  recognized  at  all.* '^ 

It  is  not  maintenance  for  a  person  to  assist  another  in  litigation, 
if  he  is  himself  interested  in  the  subject  of  the  litigation,*^  or  if  he 
in  good  faith  believes  that  he  is  so  interested,*^  or  if  he  is  a  near 
relative  of  the  litigant;**  nor,  it  seems,  for  a  person  to  assist  one 
who  has  a  good  cause  of  action,  and  is  too  poor  to  sue.*'  He  must 
assist,  however,  because  of  such  interest  or  relationship.'* 

<  3  Wheeler  v.  Pounds,  24  Ala.  472;  Low  v.  Hutchinson,  37  Me.  196;  Mar- 
tin V.  Amos,  35  N.  C.  201.  See  "Champerty  and  Maintenance"  Dec.  Dig.  {Key- 
JSio.)  §  4;   Cent.  Dig.  §§  Jt-19. 

4  4  Findon  v.  Parker,  11  Mees.  &  W.  682.  Cf.  Bradlaugh  v.  Newdegate,  11  Q. 
B.  Div.  10.  See  "Champerty  and  Maintenance,^'  Dec.  Dig.  (Key-No.)  §  4/  Cent. 
Dig.  §§  4-10. 

45  See  Perine  v.  Dunn,  3  Johns.  Ch.  (N.  Y.)  508;  Thallhimer  v.  Brincker- 
hoff,  3  Cow.  (N.  T.)  623,  15  Am.  Dec.  308;  Duke  v.  Harper,  66  Mo.  51,  27  Am. 
Rep.  314 ;  McCall's  Adm'r  v.  Capehart,  20  Ala.  521 ;  Com.  v.  Dupuy,  Brightly, 
N.  P.  (Pa.)  44.  See  "Champerty  and  Maintenance,"  Dec.  Dig.  {Key-No.)  §  4; 
Cent.  Dig.  §§  4-19. 

46  Williams  v.  Fowle,  132  Mass.  385;  Knight  v.  Sawin,  6  Greenl.  (Me.)  361; 
Inhabitants  of  Industry  v.  Inhabitants  of  Starks,  65  Me.  167;  Hutley  v.  Hut- 
ley,  L.  R.  8  Q.  B.  112;  Board  of  Com'rs  of  Bartholomew  County  v.  Jameson, 
86  Ind.  154 ;  Cooley  v.  Osborne,  50  Iowa.  526 ;  Breeden  v.  Frankfort  Marine, 
Accident  &  Plate  Glass  Ins.  Co.,  220  Mo.  327,  119  S.  W.  576.  It  is  not  mainte- 
nance for  several  to  contribute  to  the  expense  of  a  suit  by  one  where  all  have 
a  common  interest  in  settling  the  question  as  to  defendant's  liability.  Davies 
V.  Stowell,  78  Wis.  334,  47  N.  W.  370,  10  L.  R.  A.  190.  See  "Champerty  and 
Maintenance,"  Dec.  Dig.  {Key-No.)  §  4;   Cent.  Dig.  §§  4-19. 

47  Lewis  V.  Broun,  3G  W.  Va.  1,  14  S.  E.  444;  Wellington  v.  Kelly,  84  N.  Y. 
543;  Findon  v.  Parker,  11  Mees.  &  W.  G79.  See  "Champerty  and  Mainte- 
nance," Dec.  Dig.  {Key-No.)  §  4;  Cent.  Dig.  §§  4-J9. 

48  Thallhimer  v.  Brinckerhoff,  3  Cow.  (N.  Y.)  623,  15  Am.  Dec.  308;  Gille- 
land  V.  Failing,  5  Denio  (N.  Y.)  308 ;  Morris  v.  Henderson,  37  Miss.  492 ; 
Walker  v.  Ferryman,  23  Ga.  309,  at  page  316;  Jahn  v.  Champagne  Lumber 
Co.  (C.  0.)  157  Fed.  407.  See  Graham  v.  McReynolds,  90  Tenn.  673,  18  S.  W. 
272.  But  see  Barnes  v.  Strong,  54  N.  C.  100 ;  Hutley  v.  Hutley,  L.  R.  8  Q.  B. 
112.  iSee  "Champerty  and  Maintenance,"  Deo.  Dig.  {Key-No.)  §  4/  Cent.  Dig. 
§§  lt-19. 

49  Dunne  v.  Herrick,  37  111.  App.  180.  See  "Champerty  and  Maintenance," 
Dec.  Dig.  {Key-No.)  §  4;  Cent.  Dig.  §§  4-19. 

80  Greenh.  Pub.  Pol.  p.  401. 


§    161)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  373 

Champerty 

Champerty,  or  tlie  maintenance  of  a  suit  for  a  share  of  the  pro- 
ceeds, avoids  an  agreement  made  in  contemplation  of  it."^  A  fre- 
quent instance  of  champerty  is  where  an  attorney  agrees  to  con- 
duct litigation,  and  pay  the  costs,  in  consideration  of  a  certain  part 
of  whatever  he  may  recover.  Most  of  the  courts  hold  such  an 
agreement  illegal. °^  Some  courts  have  held  that  the  champertor 
need  not  carry  on  the  suit  at  his  own  expense,  and  that  any  con- 
tract is  champertous  in  which  an  attorney  agrees  to  conduct  a  suit 
for  a  compensation  contingent  on  success;  ^^  but  the  weight  of  au- 
thority is  to  the  contrary.''* 

An  agreement  is  not  champertous,  however,  which  provides  for 

81  Gilbert  v.  Holmes,  64  111.  548;  Coleman  v.  Billings,  89  111.  183;  Munday 
T.  Whissenhunt,  90  N.  C.  458;  Slade  v.  Rhodes,  22  N.  C.  24;  Barnes  v.  Strong, 
54  N.  C.  100;  Thompson  v.  Warren,  8  B.  Mon.  (Ivy.)  488;  Hayney  v.  Coyne. 
30  Heisk.  (Tenn.)  339;  Jenkins  v.  Bradford,  59  Ala.  400;  Martin  v.  Veeder,  20 
Wis.  4G6 ;  Barker  v.  Barker,  14  Wis.  131 ;  Duke  v.  Harper,  66  Mo.  51,  27  Am. 
Rep.  314;  Stanley  v.  Jones,  7  Bing.  369;  Sprye  v.  Porter,  7  El.  &  Bl.  81.  See 
^'Champerty  and  Maintenance"  Dec.  Dig.  {Key-No.)  §  4/   Oent.  Dig.  §§  4-^9. 

"THOMPSON  V.  REYNOLDS,  73  111.  11,  Throckmorton  Cas.  Contracts, 
2.^4;  Ilolloway  v.  Lowe,  7  Port.  (Ala.)  488;  Coughlin  v.  Railroad  Co.,  71  N. 
Y.  443,  27  Am.  Rep.  75;  Lancy  v.  Havender,  146  Mass.  615,  16  N.  E.  464; 
Boardman  v.  Thompson,  25  Iowa,  487;  Ev'ans  v.  Bell,  6  Dana  (Ky.)  470; 
Million  V.  Ohnsorg,  10  Mo.  App.  432 ;  Scobey  v.  Ross,  13  Ind.  117 ;  Lafferty  v. 
Jelley,  22  Ind.  471;  Hamilton  v.  Gray,  67  Vt  233,  31  Atl.  315,  48  Am.  St.  Rep. 
811  ;  Geer  v.  Frank,  179  111.  570,  53  N.  E.  965,  45' L.  R.  A.  110;  In  re  Evans, 
22  Utah,  366,  62  Pac.  913,  53  L.  R.  A.  952,  83  Am.  St.  Rep.  794;  Casserleigh 
V.  Wood,  119  Fed.  308,  .56  C.  C.  A.  212.  It  has  even  been  held  that,  where  the 
attorney  has  received  money  under  such  an  agreement  for  his  client,  the  lat- 
ter cannot  maintain  an  action  to  recover  it  Best  v.  Strong,  2  Wend.  (N.  Y.) 
319,  20  Am.  Dec.  607.  Contra,  Ackert  v.  Barker,  131  Mass.  436 ;  Stearns  v. 
Felker,  28  Wis.  594.  A  contract  whereby  the  client  is  bound  not  to  settle 
without  the  consent  of  the  attorney  is  void.  Huber  v.  Johnson,  68  Minn.  74,  70 
N.  W.  806,  64  Am.  St.  Rep.  456;  North  Chicago  St.  R.  Co.  v.  Ackley,  171  111. 
100,  40  N.  E.  222,  44  L.  R.  A.  177;  Davis  v.  Webber,  66  Ark.  190,  49  S.  W. 
822.  45  L.  R.  A.  196,  74  Am.  St.  Rep.  81 ;  Davis  v.  Chase,  159  Ind.  242,  64  N 
E.  .88,  8.53,  95  Am.  St.  Rep.  294.  See,  also,  Potter  v.  Mining  Co.,  22  Utah,  273. 
61  Pac.  999.  In  Iowa  a  contract  for  a  part  of  the  sum  recovered  is  not  void, 
unless  the  client  is  forbidden  to  settle  the  claim.  Bart  hell  v.  Chicago,  etc.,  R, 
Co.,  138  Iowa,  6S8,  116  N.  W.  813.  See  "Champerty  and  Maintenance,"  Dec, 
Dig.  (Key-No.)  §  .5;   Cent.  Dig.  §§  24-51. 

53  Lathrop  v.  President,  etc.,  9  Mete.  (Mass.)  489;  Ackert  v.  Barker,  131 
Mass.  436.  See  "Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  5;  Cent. 
Dig.  §§  2J,-51. 

5*  Aultman  v.  Waddle,  40  Kan.  195,  19  Pac.  730;  Phillips  v.  Commissioners, 
119  111.  026,  10  N.  E.  230;  Winslow  v.  Railway  Co.,  71  Iowa,  197,  32  N.  W. 
330;  Pittsburgh,  C,  C.  &  St.  L.  Ry.  v.  Volkert,  58  Ohio  St.  362,  50  N.  E.  924; 
Brush  V.  City  of  Carbondale,  229  111.  144,  82  N.  E.  252,  11  Ann.  Cas.  121  ; 
Wliinery  v.  Brown,  36  Ind.  App.  276,  75  N.  E.  605.  See  "Champerty  and  Main- 
tenance," Dec.  Dig.  (Key-No.)  {  5;    Cent.  Dig.  §§  2.',-51. 


374  LEGALITY   OF   OBJECT  (Cll.  & 

the  payment  to  the  attorney  of  a  sum  equal  to  a  certain  portion  of 
the  amount  recovered.'*''  And  it  has  been  said  that  "where  the  right 
to  compensation  is  not  confined  to  an  interest  in  the  thing  recover- 
ed, but  gives  a  right  of  action  against  the  party,  though  pledging 
the  avails  of  the  suit,  or  part  of  them,  as  security  for  the  payment, 
the  agreement  is  not  champertous."  "  So  an  agreement  by  an  at- 
torney to  prosecute  or  defend  a  suit  is  not  champertous,  if  he  has  an 
interest  in  the  suit  aside  from  that  acquired  by  the  agreement/' 
In  this  case  he  is  not  an  intermeddler, 

A  less  obvious  form  of  champerty  is  in  the  case  of  a  purchase  out 
and  out  of  a  right  of  action.  The  validity  of  such  an  agreement 
would  depend  on  whether  the  purchase  included  any  substantial  in- 
terest beyond  a  mere  right  to  litigate.  If  property  is  bought  to 
which  a  right  to  sue  attaches,  that  fact  will  not  avoid  the  con- 
tract,^* but  an  agreement  to  purchase  a  bare  right  to  sue  would  not 
be  sustained.®'  "It  is  not  unlawful  to  purchase  an  interest  in  prop- 
erty, though  adverse  claims  exist  which  make  litigation  necessary 
for  realizing  that  interest,  but  it  is  unlawful  to  purchase  an  interest 
merely  for  the  purpose  of  litigation ;   in  other  words,  the  sale  of  an 

65  Newport  Rolling  Mill  Co.  v.  Hall,  147  Ky.  598,  144'S.  W.  760;  Sparling  v. 
United  States  Sugar  Co.,  130  Wis.  509,  ll7  N.  W.  1055.  See  "Champerty  and 
Maintenance,"  Dec.  Dig.  (Keij-'^o.)  §  5;   Cent.  Dig.  §§  24-51. 

56  Blaisdell  v.  Ahern,  144  Mass.  393,  11  N.  E.  681,  59  Am.  Rep.  99.  See,  also, 
McPherson  v.  Cox,  96  U.  S.  404,  24  L.  Ed.  746 ;  Hadlock  v.  Brooks,  178  Mass. 
425,  59  N.  E.  1009.  Contra,  Huber  v.  Johnson,  68  Minn.  74,  70  N.  W.  806,  64 
Am.  St.  Rep.  456.  The  rules  governing  champerty  are  not  applicable  to  the 
prosecution  of  a  claim  otherwise  than  by  suit.  Manning  v.  Sprague,  148  Mass. 
18,  18  N.  E.  673,  1  L.  R.  A.  516,  12  Am.  St.  Rep.  508  (court  of  commissioners  of 
Alabama  claims).  See,  also,  Stanton  v.  Embrey,  93  U.  S.  548,  23  L.  Ed.  983; 
Taylor  v.  Bemiss,  110  U.  S.  42,  3  Sup.  Ct.  441,  28  L.  Ed.  64.  See  ''Champerty 
and,  Maintenance,"  Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  §§  24-51. 

57  Smith  V.  Hartsell,  150  N.  C.  71,  63  S.  K  172,  22  L.  R.  A.  (N.  S.)  2a3.  See 
"Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  5;   Cent.  Dig.  §§  2'i-51. 

58  Dickinson  v.  Burrell,  1  Eq.  337,  342.  See  "Champerty  and  Maintenance," 
Dec.  Dig.  (Key-No.)  §  6;   Cent.  Dig.  §§  5-8. 

59  Prosser  v.  Edmonds,  1  Younge  &  C.  499;  Norton  v.  Tuttle,  60  111.  130; 
Brush  V.  Sweet,  38  Mich.  574;  Illinois  Land  &  Loan  Co.  v.  Speyer,  138  111. 
137,  27  N.  E.  931 ;  Storrs  v.  Hospital,  180  111.  368,  54  N.  E.  185,  72  Am.  St. 
Rep.  211 ;  Milwaukee  &  M.  R.  Co.  v.  Railroad  Co.,  20  Wis.  174,  88  Am.  Dec. 
740 ;  Archer  v.  Freeman,  124  Cal.  528,  57  Pac.  474 ;  Haseltine  v.  Smith,  154 
Mo.  404,  55  S.  W.  633 ;  Miles  v.  Association,  108  Wis.  421,  84  N.  W.  159.  See 
Greenhood,  Pub.  Pol.  pp.  409-411.  Conveyance  of  land  held  adversely  by  an- 
other. Smith  V.  Price  (Ky.)  7  S.  W.  918;  Combs  v.  McQuinn  (Ky.)  9  S.  W. 
495 ;  Nelson  v.  Brush,  22  Fla.  374 ;  Snyder  v.  Church,  70  Hun,  428,  24  N.  Y. 
Supp.  337.  See  "Champerty  and  Maintenance,"  Dec.  Dig.  (Key-No.)  §  6; 
Cent.  Dig.  U  5-8. 


§    161)  AGREEMENTS  CONTRARY  TO  PUBLIC   POLICY  375 

interest  to  which  a  right  to  sue  is  incident  is  good,  but  the  sale  of 
a  mere  right  to  sue  is  bad."  "* 

As  we  have  stated  above,  it  is  not  regarded  as  maintenance  for  a 
near  relative  to  assist  a  person  in  litigation.  This  rule,  however, 
does  not  apply  to  champerty.  Not  even  a  relative  can  assist  for  a 
share  of  the  recovery.  "Lineal  kinship  in  the  first  degree,  or  ap- 
parent heirship,  and  to  a  certain  extent,  it  seems,  any  degree  of 
kindred  or  affinity,  or  the  relation  of  master  and  servant,  may  jus- 
tify acts  which,  as  between  strangers,  would  be  maintenance ;  but 
blood  relationship  will  not  justify  champerty."  °^ 

It  should  be  noted  that  the  defense  of  champerty  or  maintenance 
cannot  be  set  up  to  defeat  a  recovery  on  the  cause  of  action  to 
which  the  illegal  agreement  relates.  It  can  only  be  set  up  against 
the  enforcement  of  the  illegal  agreement  itself.®^ 

In  some  jurisdictions,  the  rule  prevails  that,  although  the  con- 
tract of  an  attorney  is  void  for  champerty,  he  jnay  recover  upon  a 
quantum  meruit  ihe  reasonable  value  of  his  services.®^  Upon  prin- 
ciple, however,  and  by  the  weight  of  authority,  if  the  contract  is 
itself  void  for  champerty,  there  can  be  no  recovery  upon  a  quantum 
meruit  or  otherwise  for  the  services  rendered  in  pursuance  of  the 
contract."*     As  to   services  performed  before   the  making  of  the 

60  Pol.  Cont  (Sd  Ed.)  315. 

61  Pol.  Cont.  (3d  Ed.)  320;  Hutley  v.  Hutley,  L.  R.  8  Q.  B.  112;  In  re 
Evans,  22  Utah,  366,  62  Pac.  913,  53  L.  R.  A.  952,  83  Am.  St.  Rep.  794.  See 
"Champerty  and  Maintenance,"  Dec.  Dig.  {Key-No.)  §  4;   Cent.  Dig.  §§  Jf-19. 

6  2  Burnes  v.  Scott,  117  U.  S.  582,  6  Sup.  Ct.  865,  29  L.  Ed.  991 ;  Tlaallhimer 
V.  Brinckerhoff,  3  Cow.  (N.  Y.)  623,  15  Am.  Dec.  308;  Boone  v.  Chiles,  10 
Pet.  177,  9  L,  Ed.  388;  Whitney  v.  Kirtland,  27  N.  J.  Eq.  333;  HUton  v. 
Woods,  L.  R.  4  Eq.  432;  Courtright  v.  Burnes  (C.  C.)  13  Fed.  317;  Pennsyl 
vania  Co.  v.  Lombardo,  49  Ohio  St.  1,  29  N.  E.  573,  14  L.  R.  A.  785 ;  Small  v. 
Railroad  Co.,  55  Iowa,  583,  8  N.  W.  437;  Chamberlain  v.  Grimes,  42  Neb.  701, 
60  N.  W.  948;  Davis  v.  Settle,  43  W.  Va.  17,  26  S.  E.  557;  Potter  v.  Mining 
Co.,  22  Utah,  273,  61  Pac.  999 ;  Ellis  v.  Smith,  112  Ga.  480,  37  S.  E.  739;  Elser 
v.  Village  of  Gross  Point,  223  111.  230,  79  N.  E.  27,  114  Am.  St.  Rep.  326.  Con- 
tra, Barker  v.  Barker,  14  Wis.  131 ;  Allard  v.  Lamirande,  29  Wis.  502 ;  Heaton 
V.  Dennis,  103  Tenn.  155,  52  S.  W.  175;  Miles  v.  Association,  108  Wis.  421,  84 
N.  W.  159.  See,  also,  The  Clara  A.  Mclntyre  (D.  C.)  94  Fed.  552  (distinguish- 
ing Burnes  v.  Scott,  supra,  on  ground  that  here  suit  was  in  name  of  champer- 
tor  to  whom  note  and  mortgage  had  been  assigned).  See  "Champerty  and 
Maintenance"  Dec.  Dig.   (Key-No.)   §§  4-6;  Cent.  Dig.  §§  4-51. 

63  Brush  V.  City  of  Carboudale,  229  111.  144,  82  N.  E.  2i52,  11  Ann.  Cas. 
121;  Stearns  v.  Felker,  28  Wis.  594.  See  "Champerty  and  Maintenance,'' 
Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  §§  24-51. 

64  Barngrover  v.  Pettigrew,  128  Iowa,  533,  104  N.  W.  904,  2  L.  R.  A.  (N.  S.) 
260,  111  Am.  St.  Rep.  206;  Mazureau  &  Hennis  v.  Morgan,  25*  La.  Ann.  2S1 ; 
Butler  V.  Legro,  62  N.  H.  350,  13  Am.  St.  Rep.  573 ;  Roller  v.  Murray,  112  Va. 
780,  72  S.  E.  665,  38  L.  R.  A.  (N.  S.)  1202,  Ann.  Cas.  1913B,  1088  [cit.  Chirk 
on  Contracts,  1st  Ed.  S  134],  in  which  It  is  said,  per  Buchanan,  J.:    "To  permit 


STS  I^rGAUTTT   OF  OICOJCT  (Ql.  S 

Contract.  5t  5s  agreed  that  the  Attorney  mar  recover  their  reasoa- 


S.A1\^E— AGRILEMEXrS  OF  IMMORAL  TE\DE\CY 

162.  Any    £.gTe£n:^e-:    -w-hidi   is    contrary   to    established   nijcs   of 
oecency  £i:i  norality  is  contrary  to  public  policy. 

Ac' -  ■  .s^re  contran'  to  established  rules  of  decency 

aud   r.  -    -      the  acts  to  whjc-h  they  tend  may  not  be 

prohibited  m  the  sense  of  rendering  the  doer  liable  to  a  penalty,* • 
^vnll  not  be  enforced.  Unla-wtnl  sexual  intercourse  is  not  a  crime 
at  common  la-w  unless  it  is  open  and  notorious,  but  any  tinlawlul 
sexmal  intercourse  is  c'-.tra  bono;?  —ores.  A  promise,  therefore, 
given  in  consideration  oi  present  or  iurure  ijlkit  cohabitation  or 
intercourse,  is  void;*'  and  it  is  immaterial,  in  snch  case,  whether 
the  contract  is  by  parol  or  under  seal,  for.  as  we  have  seen,  though 
no  consideration  is  necessary  to  support  a  promise  under  seal, 
yet.  if  there  is  a  consideration,  its  illegality  will  avoid  the  con- 
tract.** A  contract,  however,  for  services  to  be  rendered  by  a 
-woman  to  a  man  as  housekeeper  and  servant,  is  valid  if  not  made 
in  contemplation  of  illicit  relations,  although  the  parties  actually 

£  recPTfiSTT  Epmi  fi  (jnEnnnn  memlt,  insread  of  diseotirajring.  wpuld  enconrasre. 
liie  in£.i±nc  of  SDCt  conrrapts:  for.  if  the  dient  tept  and  perfonned  his  im- 
lETTfnl  arreemeiit.  the  atronier  ■w^ould  get  the  bene-fit  of  it  and,  if  he  did  not, 
ihe  fitromeT  i^ocJd  suffer  no  loss,  stnt*  he  conld  reoover  xipoii  the  Quaiiniin 
meniii  all  that  his  sserric^es  were  worth."  Spe  "Champertjj  an-d  Mainl^cnance," 
X>ec  Dip.  ^Xcl^yo.)  f  s;  Cent.  Bip.  §§  2^1. 

ffBreTfnss.  TVeil  &  Co.  t.  Jones.  116  HI.  App.  75:  Thurston  v.  Perdral. 
1  Pici.  lUass.")  415.  Set  ^^Chumpcrty  and  Maintenance,^  Dec  Dip.  (Kcj^Xo.) 
I  S:  Cent.  Dip.  §|  ijhSl. 

»«A  policy  obtained  by  one  on  his  own  "Kfe..  jaraWe  to  himsself,  his  ex- 
ecctOTS.  adminisitrators.  or  assigns,  which  is  siient  on  the  srob^ject  of  sraicidc, 
becomes  roid  if  the  insured  connnits  smdde  when  sane,  both  from  the  pre- 
snmed  intention  of  the  parties  and  from  principles  of  public  policy.  Ritter 
V,  Insurance  Co.,  16&  T*  S.  139.  IS  Snp.  Ct  300.  42  L  3Ed.  693.  See  *'Con- 
t-orr*/-  DcR.  Dip.    (EepS^o.)  §  US:  Cent  Dip.  §?  51S--514, 

»-  Ayei^  T.  Jentins.  16  Eq.  275;  VTallaee  t.  Rappleye.  103  HI.  229;  Walker 
^  Pectins,  S  Bnrrows,  1565 :  Baldy  t.  Stratton.  11  Pa.  316 ;  Massey  t.  Wal- 
iaee.  32  S.  C  149.  10  S.  E.  OoT;  Drennan  r.  Donclas.  102  111.  S41.  40  Am.  E^p. 
Si©:  Hanis  t.  Xaglee..  54  Cal.  51,  35  Am.  Eep.  67:  Forsythe  t.  Srate.  6  Ohio. 
20:  TTalfeer  r.  Gregoiy.  30  Ala.  ISO;  De  Sobry  t.  De  Laistre,  2  Har.  &  J. 
Old.)  191.  S  Am.  Dee.  5^:  Goodall  t.  Thnrman.  I-  Head.  (Tenn.l  209:  Saxon 
r,  Wood.  4  Ind.  App.  242.  30  X,  IL  797.  JBee  ^^ContracU,"  Dec  Dif.  (KethSo.} 
%11S:  Cent.  Dip.  U  BlS-i2^ 

••  See  ante.  p.  72, 


lived  in  3  ,,-:',...,?»    ^ ..    ^    '  -tiori  wh^re  u.i  rela- 
tions of  ^  '-od  iwoper/* 

'     •  •  -  "■■■'''■''--    's 

'.■.■-.  -ons  pro-mise,  ':■-'.■                                -.   i*  past, 

ar. ,   is    ..:  %  .  ..ccablc  if  made                                                 -,  -..  :£ 


made  under  seal/*     A  contrstci  t 

a  woman  and  their  iUegitimztc 

resort  to  bastardy  proceedings  h 

without  consideration ;  '*    and  tills  is   -  ■    •    -.  t 

cohabitation  continues,  if  there  is  n^-,  — 

station-'*    It  has  been  held  that,  if  t 

accompanied  by  seduction,  there 

port  a  parol  promise ;  **   but  th  ; 

doctrine  that  a  moral  obligation  :       .  -   .  z 

and  the  wcig^it  of  authority  :'=    -^ 

Where  tiic  liquor  traffic  is  ^  -    n 

relation  thereto  is  not  void  ^  vMic 

policy.^* 

An  agreement  r-iv  be  innocent  ir  .  '.  '  :■  -  .v  be  intended 
to  ftirthcr  an  ir-  -.  jirpose.    Tr.  *    » -  =: . :  reements 

will  be  consider': .     -.         '^ 

I*  E.r.r::^r>;/:r.  t.  R -,-■.>;:: .  2:^  0>;  2:-,  1'/:?  ?;':  '-':  2:V  L  R.  A-  '>•'  H  '^ 
1%  An-.   S?:.  R<rp.  ^o::.:   Lvtlr:  t.  r^-:^.       71-      -,:    ~     "'    il^;   ?:^:.:    ,  -     -:.:-^ 

e:^  :i-r„  €24.  :'  ^'   7    : .- :    ^,:     '  ';  •  -    -    ^  ^-2.  17  x.  z. 

8r;2    ^  A:r,   8t  -  ^  >  i  liJ;  Ceirt. 

■  '  0.5  -   Sapreme  L«>d2«  Bora  90  Neb.  578.  154  X.  W.  2^,  37  L 

R  A.  f.v   -     ::  ?:     .-^^  IM^.  (fey-jro.)  s  ii2/  Ce«<.  i>^. 

-■■  Gr£7  7.  ilatLli  -    Beere^  8  Q.'  B.  4S3;  CoaileT 

T.  :;a;'.r.  US  r.  a      -'  Zd.  112;  Brown  t.  Kinii^,  81 

X.  C.  2iZ:  Miv-ej  7  Ij  3.  E.  93T;  Bmm  T.  Windnop. 

1  Johns.  CL.    :.,  T  .,  .i2',  .    23  Pa.  338.    But  see  Wallace  t, 

Rappleye,  lOe  III  22&,  at  i:^-.  -i«- .  u1,L^la:^  t.  Flemiiis,  12  B.  ilon.  (Kj.) 
285.     flee  '^Coafr/jcf^.-  Z>ec.  Di^.  (K^'j-yc.)  i  iii;  C'*h/.  Diif.  U  ol2~512. 

'2  Burton  v.  Bei-rin,  142  N.  C.  15;,  55  S.  E.  71.  se«  -CfSflUra***,"  Dee.  Diy. 
{Key-So.)  %  Hi;  Cent.  Dig.  H  5lZ-ol\. 

'»  Burton  t.  Bel  Tin,  su;;ra.  i'ee  "Co-nfrie?-*,"  I/e«.  I>i^.  (i^cy-y©.)  f  Hi; 
Cer%t.  Dig.  ||  oli-Zl^. 

I ♦  Smith  V.  Richards.  2&  Conn.  222:  Sienk  v.  lfL::?Ie.  13  H^r?.  &  R.  fPa-> 
29.     Hee  "Contracts:'  Dee.  Dig.   (A'?L,yo.j   ]  112;  Cent.  Dig.  ii  512-61^. 

T»Ante,  p.  13fi,  175. 

T«  Jlitchell  T.  Branham,  104  Mo.  App.  4^:.  75  S.  W.  73&.  Be*  ■'Cotraeur 
Dec.  Dig.  (Key-yo.)  f  112;  Cent.  Dig.  U  »l2-m. 

»T  Post,  p.  412. 


378  LEGALilTY    OF   OBJECT  (Ch,  8 

SAME— AGREEMENTS  TENDING  TO  FRAUD  AND 
BREACH  OF  TRUST 

163.  Any  agreement  which  has  a  direct  tendency  to  induce  a  per- 
son to  commit  a  fraud  upon  the  rights  of  others,  or  a 
breach  of  trust  and  confidence,  is  illegal  as  being  contrary 
to  public  policy. 

"Contracts,"  it  has  been  said,  "which  are  opposed  to  open,  up- 
right, and  fair  dealings,  are  opposed  to  public  policy.  A  contract 
by  which  one  is  placed  under  a  direct  inducement  to  violate  the 
confidence  reposed  in  him  by  another  is  of  this  character.  *  *  * 
The  law  will  not  only  avoid  contracts,  the  avowed  purpose  or 
express  object  of  which  is  to  do  an  unlawful  act,  but  those  made 
with  a  view  to  place,  or  the  necessary  effect  of  which  is 
to  place,  a  person  under  wrong  influences,  and  offer  ^  him 
a  temptation  which  may  injuriously  affect  the  rights  of  third 
persons."  ^*  Although  the  act  contracted  to  be  done  "may  be  just 
and  beneficial  as  between  the  parties  immediately  concerned  in  it, 
and  though  it  be  accomplished  in  good  faith  and  without  undue 
means,  yet  the  contract  to  procure  to  be  done  is  held  to  be  against 

TsGreenh.  Pub.  Pol.  294;  Edwards  v.  Estell,  48  Cal.  194;  Byrd  v.  Hughes, 
84  111.  174,  25  Am.  Kep.  442;  Forsyth  v.  Woods,  11  Wall.  484,  20  L.  Ed.  207; 
Rice  V.  Williams  (C.  C.)  32  Fed.  437;  Gleason  v.  Railroad  Co.  (Iowa)  43 
N.  W.  517 ;  Smith  v.  Humphreys,  88  Me.  345,  34  Atl.  166 ;  Smythe's  Estate  v. 
Evans,  209  111.  376,  70  N.  E.  906;  McClure  v.  Ullmann,  102  Mo.  App.  697.  77 
S.  W.  325;  Smith  v.  David  B.  Crockett  Co.,  85  Conn.  282,  82  Atl.  509,  39 
L.  R.  A.  (N.  S.)  1148,  in  which  "graft"  is  defined  by  Hall,  C.  J.,  as  "the  re- 
ceiving of  personal  gain  without  rendering  compensatory  services,  by  persons 
holding  positions  of  trust  and  confidence,  and  *  *  *  but  a  form  of  bribery." 
A  good  illustration  of  such  an  agreement  is  where  a  broker  employed  to  sell 
property  is  also  employed  by  the  person  to  whom  he  sells  to  buy,  thus  to  re- 
ceive a  commission  from  both  parties.  Rice  v.  Wood,  113  Mass.  133,  18  Am. 
Rep.  459 ;  Everhart  v.  Searle,  71  Pa.  256.  And  see  Holcomb  v.  Weaver,  136 
Mass.  205.  So,  also,  where  a  broker  is  employed  to  sell  land,  an  agreement 
with  a  person  who  wishes  to  buy,  by  which  the  broker  is  to  introduce  him 
to  the  principal,  and  receive  part  of  the  land  when  purchased,  is  void.  Smith 
V.  Townsend,  109  Mass.  500.  An  agreement  between  real-estate  agents  repre- 
senting different  principals  to  divide  commissions  in  case  they  effect  sale  is 
void.  LEVY  v.  SPENCER,  18  Colo.  532,  33  Pac.  415,  30  Am.  St.  Rep.  303, 
Throckmorton  Cas.  Contracts,  259;  Howard  v.  Murphy,  70  N.  J.  Law,  141,  56 
Atl.  143,  1  Ann.  Cas.  571.  See  Tiffany,  Ag.  415  et  seq.  An  agreement  by  a 
client  releasing  his  attorney  from  all  the  duties  of  the  relationship  is  void.  In 
re  Boone  (C.  C.)  83  Fed.  944.  A  stipulation  in  a  contract  that  false  represen- 
tations used  in  procuring  it  shall  not  affect  its  validity  is  itself  invalid. 
Hofflin  V.  Moss,  67  Fed.  440,  14  C.  C.  A.  459.  See  "Contracts,"  Dec.  Dig. 
{Key-No.)  §  IIS;  Cent.  Dig.  §§  521-51,1. 


§    163)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  '     379 

public  policy,  because  its  natural  effect  is  to  cause  the  party  to 
abuse  the  confidence  placed  in  him,  *  ♦  *  and  thereby  preju- 
dicially to  affect  the  rights  of  others."  ^'  In  accordance  with  this 
principle,  a  contract  by  a  guardian,  trustee,  or  other  fiduciary  to 
resign  his  trust  is  void.*"  "A  trustee  may  not  make  use  of  his 
relations  as  such  for  personal  emolument.  *  ♦  *  He  may  vol- 
untarily resign  for  reasons  not  mercenary  in  character,  but  has 
no  right  to  traffic  in  or  make  merchandise  of  the  confidence  reposed 
in  him."  ®^  So  a  contract  by  which  a  fiduciary  deprives  himself 
of  the  control  of  funds  intrusted  to  him  is  void.^^ 

A  contract  by  a  stockholder  in  a  corporation  to  vote  his  stock  in 
a  particular  way,*^  or  by  one  owning  a  majority  of  the  stock  in 
a  corporation  to  sell  all  the  corporate  property  without  the  con- 
sent of  the  minority  stockholders  is  void.®*  The  same  is  true,  also, 
of  a  contract  by  an  officer  of  a  corporation  that  he  will  use  his 

7  8  Spinks  V.  Davis,  32  Miss.  152.  See,  also,  Harrington  v.  Dock  Co.,  3 
Q.  B.  Div.  549 ;  Atlee  v.  Fink,  75  Mo.  100,  42  Am.  Rep.  385.  The  rule  does  not 
apply  to  a  case  in  which  a  broker  is  acting  as  agent  of  both  parties  with 
their  knowledge.  Greenhood,  Pub.  Pol.  rule  2G2 ;  Shaw  v.  Andrews,  9  Cal. 
73;  Pugsley  v.  Murray,  4  E.  D.  Smith  (N.  Y.)  245;  Bonwell  v.  Howes  (City 
Ct.  N.  Y.)  1  N.  Y.  Supp.  435;  Bell  v.  McConnell,  37  Ohio  St.  396,  41  Am.  Rep. 
528.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  113;    Cent.  Dig.  §§  521-57,1. 

80  Cunningham  v.  Cunningham,  18  B.  Mon.  (Ky.)  24,  68  Am.  Dec.  718 
(guardian)  ;  Ellicot  v.  Chamberlain,  38  N.  J.  Eq.  G04,  48  Am.  Rep.  327  (execu- 
tor) ;  Curipier  v.  Clark,  19  Colo.  App.  250,  75  Pac.  927  (executor).  See  "Con- 
tracts," Dec.  Dig.  {Key-No.)  §  113;  Cent.  Dig.  §§  521-51,1. 

siAughey  v.  Windrem,  137  Iowa,  315,  114  N.  W.  1047,  per  Ladd,  C.  J. 
See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  113;  Cent.  Dig.  §§  521-57,1. 

8  2  Fidelity  &  Deposit  Co.  of  Md.  v.  Butler,  130  Ga.  225,  60  S.  E.  851,  16  L. 
R.  A.  (N.  S.)  994  (contract  of  guardian  to  deposit  ward's  money  in  bank 
and  not  to  draw  it  out  except  upon  the  joint  check  of  himself  and  surety). 
See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  113;  Cent.  Dig.  §§  521-57,1. 

88  Ready  v.  United  Rys.  Co.,  57  Or.  325,  100  Pac.  658,  108  Pac.  197,  holding, 
however,  that  the  contract  will  be  valid  if  all  persons  interested  have  knowl- 
edge of  it  and  expressly  or  impliedly  assent  to  it  Contracts  for  the  establish- 
ment of  a  "voting  trust,"  by  which  stockholders  agree  that  the  trustees  named 
shall  have  power  to  vote  the  stock  if  parties  to  the  agreement  have  been  held 
void  in  some  states,  on  the  ground  that  a  contract  which  separates  the  bene- 
ficial ownership  of  corporate  stock  from  its  legal  title  and  control  is  contrary 
to  public  policy.  Morel  v.  Hoge,  130  Ga.  625,  61  S.  E.  487,  16  L.  R.  A.  (N.  S.) 
1136,  14  Ann.  Cas.  935 ;  Warren  v.  Pim,  66  N.  J.  Eq.  353,  59  Atl.  773 ;  Bridgers 
V.  First  Nat.  Bank,  152  N.  C.  293,  67  S.  E.  770,  31  L.  R.  A.  (N.  S.)  1199; 
Sheppard  v.  Rockingham  Power  Co.,  150  N.  C.  776,  64  S.  E.  894.  But  in  other 
cases  such  agreements  have  been  sustained.  Gray  v.  Bloomington  &  N.  Ry., 
120  111.  App.  159;  Boyer  v.  Nesbitt,  227  Pa.  398,  76  Atl.  103,  136  Am.  St.  Rep. 
890.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  121;  Cent.  Dig.  §  507,. 

8  4  Bias  V.  Atkinson.  6^1  W.  Va.  486,  63  S.  E.  395.  See  "Contracts,"  Deo. 
Dig.  {Key-No.)  §  121;  Cent.  nig.  §  504. 


380  LEGALITY   OF   OBJECT  (Ch.  8 

influence  to  retain  another  in  office  at  a  fixed  salary/"  or  for  any 
other  use  of  his  position  and  influence  that  might  interfere  with 
his  duty  to  the  stockholders.®" 

The  courts  have  even  gone  so  far  as  to  hold  void  any  contract 
that  has  for  its  object  the  practice  of  deception  upon  a  third  person 
or  the  taking  advantage  of  confidential  relations  with  him  to 
draw  him  into  a  bargain  by  which  the  person  undertaking  to  use 
his  influence  will  secretly  receive  a  benefit  from  the  other  party 
to  the  contract.®^ 

It  is  impossible  to  go  further  into  the  various  rules  growing 
out  of  this  principle.  They  have  been  admirably  stated,  and  the 
illustrations  and  authorities  collected,  by  Greenhood  in  his  work 
on  Public  Policy.*" 

SAME— AGREEMENTS  IN  DEROGATION  OF  THE  MAR- 
RIAGE RELATION 

164.  As  a  general  rule,  any  agreement  which  restrains  the  free- 
dom of  parties  to  marry,  or  the  freedom  of  choice  in  mar- 
rying, or  impairs  the  sanctity  and  security  of  the  marriage 
relation,  or  is  otherwise  in  derogation  of  such  relation, 
is  contrary  to  public  policy. 

Agreements  which  restrain  the  freedom  of  marriage  are  dis- 
couraged on  political  and  social  grounds,  as  injurious  to  the  in- 
crease of  population  and  the  moral  welfare  of  the  citizen.  Agree- 
ments   not   to    marry   are    therefore    void.      A    promise    to    marry 

88  West  V.  Camden,  135  U.  S.  507,  10  Sup.  Ct.  8.38,  34  L.  Ed.  254;  Gage 
V.  Fisher,  5  N.  D.  297,  65  N.  W.  809,  31  L,  R.  A.  557.  See  "Contracts,"  Dec. 
Dig.  {Eey-'S'o.)  §  121;  Cent.  Dig.  §  50.',. 

86  Willbur  V.  Stoepel,  82  Mich.  344,  46  N.  W.  724,  21  Am.  St.  Rep.  568; 
Attaway  v.  Banlj,  93  Mo.  485,  5  S.  W.  16;  Lum  v.  McEvren,  56  Minn.  278, 
57  N.  W.  662 ;  Guernsey  v.  Cook,  120  Mass.  501 ;  Dickson  v.  Kittson,  75  Minn. 
ICS,  77  N.  W.  820,  74  Am.  St.  Rep.  447;  Sauerherlng  v.  Reuping,  119  N.  W. 
184,  137  Wis.  407.  Contract  by  ofBcer  of  corporation  for  purchase  by  him 
of  claim  against  the  corporation.  McDonald  v.  Haughtou,  70  N.  C.  393.  Con- 
tract by  officer  of  railroad  company  to  locate  a  station  at  a  particular  place 
or  to  build  the  road  to  a  certain  point  in  consideration  of  benefit  to  himself. 
Peckham  v.  Lane,  81  Kan.  489,  106  Pac.  464,  25  L.  R.  A.  (N.  S.)  967,  19  Ann. 
Cas.  369 ;  McGuffin  v.  Coyle,  16  Okl.  648,  85  Pac.  954,  86  Pac.  962,  6  L.  R.  A. 
(N.  S.)  524.  See  ''Contracts;'  Dec.  Dig.  (Key-No.)  §§  113,  121;  Cent.  Dig.  §§ 
50J,,  521-541. 

87  Simon  v.  Garlitz  (Tex.  Civ.  App.)  133  S,  W.  461 ;  Torpey  v.  Murray, 
93  Minn.  482,  101  N.  W.  609;  Standard  Lumber  Co.  v.  Butler  Ice  Co.,  146 
Fed.  359,  76  C.  C.  A.  639,  7  L.  R.  A.  (N.  S.)  467.  /See  "Contracts;'  Dec.  Dig. 
{Key-No.)  §  113;  Cent.  Dig.  §§  521-541. 

ssGreenh.  Pub.  Pol.  pp.  292-326. 


§    164)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  381 

no  one  but  the  promisee,  for  instance,  on  penalty  of  paying  her  a 
certain  sum,  has  been  held  void  because  there  was  no  promise 
of  marriage  on  either  side,  and  the  agreement  was  purely  restric- 
tive.*® So,  also,  a  wager  in  which  one  man  bet  another  that  he 
would  not  marry  within  a  certain  time  was  held  void,  as  giving 
to  one  of  the  parties  a  pecuniary  interest  in  not  marrying.'®  A 
contract  between  two  persons  to  prevent  the  marriage  of  a  third 
is  illegal,  as  tending  to  break  up  contemplated  marriages  and  to 
lead  to  "slander  and  other  illegitimate  practices  injurious  and  det- 
rimental to  the  well-being  of  the  community  and  of  the  public 
generally."  '^  It  has  been  said,  however,  that  "the  general  rule 
that  contracts  in  restraint  of  marriage  are  void  has  no  applica- 
tion to  second  marriages;"'^  and  contracts  providing  for  the 
payment  to  a  surviving  or  divorced  spouse  of  a  certain  income 
so  long  as  he  or  she  remains  unmarried  have  been  sustained.** 
Contracts  restraining  the  freedom  of  choice  in  entering  into  a 
marriage,  such  as  marriage  brocage  contracts,  or  promises  made 
upon  consideration  of  the  procuring  or  bringing  about  of  a  mar- 
riage, are  held  illegal  on  social  grounds.®*  Such  a  contract  is 
void,  although  it  is  merely  to  hasten  an  intended  marriage  ®^  or 
to  bring  about  a  marriage  of  parties  already  engaged.®® 

«9  Lowe  V.  Peers,  4  Burrows,  2225.  See  Hogan  v.  Curtln,  88  N.  T.  162,  42 
Am.  Rep.  244.  Where  a  coutract  to  care  for  another  during  his  life,  and  not 
to  marry,  is  performed,  it  will  be  enforced,  notwithstanding  that  the  promise 
not  to  marry  is  void.  King  v.  King,  63  Ohio  St.  3(33,  59  N.  E.  Ill,  52  L.  R.  A. 
157,  81  Am.  St.  Rep.  635.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  111;  Cent. 
Dig.  §§  515-520. 

80  Hartley  v.  Rice,  10  East,  22.  And  see  Chalfant  v.  Payton,  91  Ind.  202, 
46  Am.  Rep.  586;  James  v.  Jellison,  94  Ind.  292,  48  Am.  Rep.  151;  Sterling 
V.  Sinnickson,  5  N.  J.  Law,  756;  Bostick  v.  Blades,  59  Md.  231,  43  Am.  Rep. 
548.  But  see  Shafer  v.  Senseman,  125  Pa.  310,  17  Atl.  350.  See  "Qaming," 
Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  §§  5-15. 

»i  Sheppey  v.  Stevens  (C.  C.)  177  Fed.  484.  See  "Contracts,"  Dee.  Dig. 
(Key-No.)  §  111;   Cent.  Dig.  §§  515-520. 

8  2  In  re  Appleb.v's  Estate,  100  Minn.  408,  111  N.  W.  305,  10  L.  R.  A.  (N.  S.) 
500,  117. Am.  St.  Rep.  709,  30  Ann.  Cas.  563.  See  "Contracts,"  Dec.  Dig.  (Key- 
7fo.)  §  111;   Cent.  Dig.  §§  515-520. 

»8  In  re  Appleby's  Estate,  supra;  Jones  v.  Jones,  1  Colo.  App.  28,  27  Pac. 
85.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  111;   Cent.  Dig.  §§  515-520. 

94  Arundel  v.  Trevillian,  Rep.  Ch.  47;  Crawford  v.  Russell,  62  Barb.  (N.  Y.) 
92;  Duval  v.  Wellman  (Com.  PI.  N.  Y.)  1  N.  Y.  Supp.  70;  Id.,  124  N.  Y.  156, 
26  N.  E.  343  ;  Johnson's  Adm'r  v.  Hunt,  81  Ky.  321 ;  Wenninger  v.  Mitchell, 
339  Mo.  App.  420,  122  S.  ^V:  1130;  Hermann  v.  Charlesworth,  [1905]  2  K.  B. 
123,  74  L.  J.  K.  B.  620,  93  Law  T.  284,  54  Wkly.  Rep.  22,  21  Times  Law  R,  368. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  111;   Cent.  Dig.  §§  515-520. 

95  Jangraw  v.  Perkins,  76  Vt.  127,  56  Atl.  532,  104  Am.  St.  Rep.  917.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  111;   Cent.  Dig.  §§  515-520. 

»e  MORRISON  v.  ROGERS,  115  Cal.  252,  46  Paa  1072,  50  Am.  St.  Rep.  9"., 


382  LEGALITY   OF   OBJECT  (Ch.  8 

Agreements  are  also  contrary  to  public  policy  if  they  directly 
tend  to  disturb  or  prejudice  the  status  of  a  lawful  marriage  after 
it  has  been  entered  into.  Agreements  for  separation  of  husband 
and  wife  are  valid  if  made  in  prospect  of  an  immediate  separation ;  °^ 
but  if  they  provide  for  a  possible  separation  in  the  future  they 
are  illegal,  and  it  is  immaterial  whether  they  are  made  before  or 
after  marriage,  because  they  give  inducements  to  the  parties  not 
to  perform  "duties  in  the  fulfillment  of  which  society  has  an  inter- 
est." ®^  "An  agreement  for  an  immediate  separation  is  made  to 
meet  a  state  of  things  which,  however  undesirable  in  itself,  has 
in  fact  became  inevitable.  ♦  *  *  To  allow  validity  to  pro- 
visions for  a  future  separation  would  be  to  allow  the  parties  in 
effect  to  make  the  contract  of  marriage  determinable  on  conditions 
fixed  beforehand  by  themselves."  °' 

To  obtain  a  divorce  by  collusion  is  not  only  an  evasion  of  justice, 
but  is  contrary  to  public  polic}'",  as  being  in  derogation  of  the  mar- 
riage relation ;  and  any  agreement,  therefore,  between  husband  and 
wife,  in  consideration  of  one  of  them  withdrawing  or  not  making 
opposilion  to  a  suit  for  divorce  brought  by  the  other,  is  void.  This 
applies  to  any  agreement  intended  to  facilitate  the  procuring  of  a 
divorce.^     The  common-law  rule  as  to  the  inability  of  a  married 

Throckmorton  Cas.  Contracts,  263.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
111;  Cent.  Dig.  §§  515-520. 

97  Hunt  V.  Hunt,  4  De  Gex,  F.  &  J.  221 ;  Fox  v.  Davis,  113  Mass.  255,  18 
Am.  Rpp.  476;  Brown  v.  Brown,  5  Gill  (Md.)  249;  Jenkins  v.  Hall.  26  Or. 
79,  37  Pac.  62;  Walker  v.  Walker,  9  Wall.  743,  19  L.  Ed.  814;  Helms  v. 
Franciscus,  2  Bland  (Md.)  544,  20  Am.  Dec.  402;  Wells  v.  Stout,  9  Cal.  479; 
Com.  V.  Richards,  131  Pa.  209,  18  Atl.  1007;  Rains  v.  Wheeler,  76  Tex.  390, 
13  S.  W.  324 ;    Clark  v.  Fosdick.  118  N.  T.  7,  22  N.  B.  1111,  6  L.  R.  A.  132, 

16  Am.  St.  Rep.  733 ;    Carey  v.  Mackey,  82  Me.  516,  20  Atl.  S4,  9  L.  R.  A.  113, 

17  Am.  St.  Rep.  500 ;  Grime  v.  Borden,  166  Mass.  198,  44  N.  E.  216.  Contra, 
Baum  V.  Baum,  109  Wis.  47,  85  N.  W.  122,  53  L.  R.  A.  650,  83  Am.  St  Rep. 
854 ;  Foote  v.  Nickerson,  70  N.  H.  496,  48  Atl.  lOSS,  54  D.  R.  A.  5.54.  Cf .  Bo- 
land  V.  O'Neil,  72  Conn.  217,  44  Atl.  15 ;  Bailey  v.  Dillon,  186  Mass.  244,  71 
N.  E.  538,  66  L.  R.  A.  427.  But  agreement  may  be  set  aside  if  not  fair  to  the 
wife.  McConnell  v.  McConnell,  98  Ark.  193,  136  S.  W.  931,  33  L.  R.  A:  (N.  S.) 
1094.  -See  "Husband  and  Wife:'  Dec.  Dig.  (Key-No.)  §  27S;  Cent.  Dig.  §§  10J,6- 
1053;   "Contracts;'  Cent.  Dig.  §•§  515,  511. 

sscartwright  v.  Cartwright,  3  De  Gex,  M.  &  G.  982;  Westmeath  v.  West- 
meath,  1  Dow.  &  C.  519;  Randall  v.  Randall,  37  Mich.  563;  Brun  v.  Brim,  64 
Neb.  782,  90  N.  W.  860 ;  Ferevia  v.  Perevia,  156  Cal.  1,  103  Pac.  488,  23  L.  R. 
A.  (N.  S.)  SSO,  134  Am.  St.  Rep.  107.  And  see  cases  in  preceding  note.  See 
"Husband  and  Wife,"  Dec.  Dig.  (Key-No.)  §  27S;  Cent.  Dig.  §§  10J,6-1053; 
"Contracts,"  Cent.  Dig.  §§  515,  517. 

8  9  Pol.  Cont.  (3d  Ed.)  286. 

1  Besant  v.  Wood,  12  Ch.  Div.  623;  Hamilton  v.  Hamilton,  89  HI.  349; 
Stoutenburg  v.  Lybrand,  13  Ohio  St.  228 ;  Muckenburg  v.  Holler,  2!9  Ind.  139. 
92  Am.  Dec.  345;    Wilde  v.  Wilde,  37  Neb.  801,  56  N.  W.  724;    Comstock  v. 


§    164)  AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  383 

woman  to  contract  has  been  so  far  modified  in  most  jurisdictions  as 
to  enable  her  to  make  a  valid  contract  for  the  services  of  an  attor- 
ney in  a  divorce  suit,^  and  in  the  absence  of  an  express  contract 
she  is  liable  for  the  reasonable  value  of  the  attorney's  services;* 
but  a  contract  by  which  the  attorney  is  to  receive  a  portion  of  the 
alimony  recovered  is  void,  as  giving  him  an  interest  in  the  dissolu- 
tion of  the  marriage.* 

On  the  other  hand,  a  contract  made  by  a  wife  who  is  living  apart 
from  her  husband,  whether  made  with  him  ^  or  with  a  third  party,'' 
by  which  she  agrees  to  a  restoration  of  marital  relations  with  her 
husband,  is  in  accordance  with  a  sound  public  policy  and  is  valid. 

It  has  also  been  held  that  contracts  between  husband  and  wife 

Adams,  23  Kan.  513,  33  Am.  Rep.  191;  Viser  v.  Bertrand,  14  Ark.  2G7;  Ad- 
ams V.  Adams,  25  Minn.  72 ;  Stokes  v.  Anderson,  118  Ind.  533,  21  N.  E.  331,  4 
L.  R.  A.  313 ;  Newman  v.  Freitas,  129  Cal.  2S3,  61  Pac.  907,  50  L.  R.  A.  54S ; 
Davis  V.  Hinman,  73  Neb.  850,  103  N.  W.  608,  9  Ann.  Cas.  376;  Donohue  v. 
Donobue,  159  Mo.  App.  610,  141  S.  W.  405.  An  agreement  between  a  man  and 
his  wife,  made  the  day  after  he  has  been  awarded  a  decree  of  divorce,  to  pay 
an  annuity  if  she  will  not  move  for  new  trial,  is  void.  Blank  v.  Nohl  (Mo.) 
19  S.  W.  65 ;  Id.,  112  Mo.  159,  20  S.  W.  477,  18  L.  R.  A.  350.  Contract  by  wife 
not  to  sue  for  alimony  for  a  year  is  void.  Evans  v.  Evans.  93  Ky.  510.  20  S. 
W.  605.  If  the  promisee  is  ignorant  of  the  fact  that  the  promisor  is  already 
married,  she  may  maintain  an  action  against  him  for  breach  of  his  promise. 
See  Paddock  v.  Robinson,  63  ni.  99,  14  Am.  Rep.  112;  Haviland  v.  Halstead, 
34  N.  Y.  643;  Cammerer  v.  Muller,  60  Hun,  578.  14  N.  Y.  Supp.  511;  Id., 
133  N.  Y.  623.  30  N.  E.  1147;  Kerns  v.  Hagenbuchle  (Super.  N.  Y.)  17  N.  Y. 
Supp.  367.  Promise  to  marry  on  death  of  divorced  wife  held  valid.  Brown  v. 
Odill,  104  Tenn.  250,  56  S.  W.  840,  52  L.  R.  A.  660,  78  Am.  St.  Rep.  914.  Con- 
tract for  payment  of  a  certain  sum  to  attorney  and  detective  contingent  upon 
procuring  a  divorce  is  void.  Barngrover  v.  Pettigrew,  128  Iowa,  533,  104  N. 
W.  904,  2  L.  R.  A.  (N.  S.)  260,  111  Am.  St  Rep.  206.  But  a  promise  by  the 
husband,  after  decree  of  divorce  is  granted,  to  pay  his  wife  a  certain  sum  in 
lieu  of  his  obligation  of  support,  is  valid.  Nelson  v.  Vassenden,  115  Minn.  1, 
131  N.  W.  794,  35  L.  R.  A.  (N.  S.)  1167.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  111;   Cent.  Dig.  §§  515-520. 

2  Wolcott  V.  Patterson,  100  Mich.  227,  58  N.  W.  1006,  24  L.  R.  A.  629,  43 
Am.  St.  Rep.  456.  See  "Hushand  and  Wife,"  Dec.  Dig.  (Key-No.)  §  82;  Cent. 
Dig.  §§  S22,  324. 

3  McCurdy  v.  Dillon,  135  Mich.  678,  98  N.  W.  746.  See  "Husband  and  Wife," 
Dec.  Dig.  (Key-No.)  §  82;   Cent.  Dig.  §§  S22,  S2J,. 

4  McCurdy  v.  Dillon,  135  Mich.  678,  98  N.  W.  746 ;  Jordan  v.  Westerman,  62 
Mich.  170,  28  N.  W.  826,  4  Am.  St.  Rep.  836 ;  McConnell  v.  McCounell,  98  Ark. 
193,  136  S.  W.  931,  33  L.  R.  A.  (N.  S.)  1094.  See  "Contracts;'  Dec.  Dig.  (Key- 
No.)  §  111;    Cent.  Dig.  §§  515-520. 

B  Adams  v.  Adams,  91  N.  Y.  381,  43  Am.  Rep.  675;  Barbour  v.  Barbour,  40 
N.  J.  Eq.  429,  24  Atl.  227.  Contra,  Merrill  v.  Peaslee,  146  Mass.  460,  16  N.  E. 
271,  4  Am.  St.  Rep.  334  (Holmes,  Knowlton,  and  C.  Allen,  J  J.,  dissenting). 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  111;  Cent.  Dig.  §§  515-520. 

«  Mack  V.  Mack,  87  Neb.  819,  128  N.  W.  527,  31  L.  R.  A.  (N.  S.)  441.  Bee 
"Contracts;'  Dec.  Dig.  (Key-No.)  §  111;  Cent.  Dig.  §§  515-520. 


384  LEGALITY   OF  OBJECT  (Ch.  8 

regulating-  their  duties  and  conduct  in  matters  pertaining  directly 
and  exclusively  to  the  home  cannot  be  made  the  subject  of  public 
inquiry,  and  that  it  is  contrary  to  public  policy  to  recognize  and 
enforce  them.' 


SAME— AGREEMENTS  IN  DEROGATION  OF  PARENTAL 

RELATION 

165.  A  contract  whereby  a  father  deprives  himself  of  the  custody  of 
his  child  is  contrary  to  public  policy. 

Parental  Relation 

A  contract  by  a  father  for  relinquishment  of  the  right  to  the  cus- 
tody of  his  child  is  void  as  against  public  policy.*  The  trust  is 
personal  to  the  father,  and  he  has  no  right  to  dispose  of  the  child 
to  another.  Such  contracts,  however,  when  carried  out,  may  have 
the  indirect  efifect  of  preventing  the  father  from  asserting  his 
rights,  if  the  interests  of  the  child  so  require.* 


SAME— AGREEMENTS  IN  RESTRAINT  OF  TRADE 

166.  Any  agreement  which  unreasonably  restrains  a  person  from 

exercising  his  trade  or  business  is  contrary  to  public  pol- 
icy. 

167.  A  restraint  is  not  unreasonable  if  it  is  founded  on  a  valuable 

consideration,  and  is  reasonably  necessary  to  protect  the 
interest  of  the  party  in  whose  favor  it  is  imposed,  and  does 
not  unduly  prejudice  the  interests  of  the  public. 

T  A  contract  between  hus5and  and  wife  to  drop  matters  in  dispute,  refrain 
from  scolding,  fault-finding,  and  anger,  and  live  together  as  husband  and 
wife ;  that  the  wife  should  keep  her  home  in  a  comfortable  condition ;  and 
that  the  husband  provide  necessary  expenses,  and  pay  the  wife  a  certain 
sum  per  month,  held  illegal.  Miller  v.  Miller,  78  Iowa,  177,  35  N.  W.  4G4,  42 
N.  W.  641,  16  Am.  St.  Rep.  431.  See  "Contracts;'  Dec.  Dig.  {Key-No.)  §  111; 
Cent.  Dig.  §§  515-520. 

8  State  V.  Baldwin,  5  N.  J.  Eq.  454,  45  Am.  Dec.  397 ;  People  v.  Mercein, 
3  Hill  (N.  Y.)  410,  38  Am.  Dec.  644 ;  Brooke  v.  Logan,  112  Ind.  183,  13  N.  E. 
669,  2  Am.  St.  Rep.  177 ;  Washaw  v.  Gimble,  50  Ark.  351,  7  S.  W.  389 ;  Weir 
V.  lilarley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R.  A.  672;  Hibbette  v.  Balnes,  78 
Miss.  695,  29  South.  80,  51  L.  R.  A.  839.  Cf.  Enders  v.  Enders,  164  Pa.  266, 
30  Atl.  129,  27  L.  R,  A.  56,  44  Am.  St.  Rep.  59a  See  "Parent  and  Child,*"  Deo. 
Dig.  (Ecy-No.)  §  2;   Cent.  Dig.  §§  4-32. 

»  See  Tiffany,  Pers.  &  Dom.  Rel.  2.53-255. 


§§    166-169)       AGREEMENTS   CONTRARY   TO   PUBLIC    POLICY  385 

168.  It  was  formerly  thought,  and  is  still  held  in  some  jurisdic- 

tions, that  though  the  restraint  might  be  unlimited  as  to 
time,  it  could  not  be  unlimited  as  to  space;  but  modern 
decisions  hold  that  such  a  restraint  is  not  invalid,  if  it  is 
reasonable. 

169.  Within  this  class  are  combinations  and  agreements  tending  to 

prevent  competition,  enhance  prices,  and  create  monopo- 
lies, but  they  had  best  be  treated  separately. 

A  contract  in  unreasonable  restraint  of  trade  is  contrary  to  pub- 
lic policy  and  void.  "The  unreasonableness  of  contracts  in  restraint 
of  trade  and  business  is  very  apparent  from  several  obvious  consid- 
erations:  (1)  Such  contracts  injure  the  parties  making  them,  be- 
cause they  diminish  their  means  of  procuring  livelihoods  and  a 
competency  for  their  families,  ♦  *  *  (2)  They  tend  to  deprive 
the  public  of  the  services  of  men  in  the  employments  and  capacities 
in  which  they  may  be  most  useful  to  the  community  as  well  as  to 
themselves.  (3)  They  discourage  industry  and  enterprise,  and  di- 
minish the  products  of  ingenuity  and  skill.  (4)  They  prevent  com- 
petition and  enhance  prices.  (5)  They  expose  the  public  to  all  the 
evils  of  monopoly.^"  Public  policy  requires,  however,  that  the 
freedom  of  persons  to  enter  into  contracts  shall  not  be  lightly 
interfered  with.  Some  restraint  of  trade,  therefore,  must  be  pei- 
mitted,  but  we  shall  see  that  it  must  not  be  unreasonable. 

At  one  time  in  England  it  was  considered  that  a  contract  was  con- 
trary to  public  policy  if  it  placed  any  restraint  at  all  on  a  man's 
right  to  exercise  his  trade  or  calling.  Gradually,  however,  excep- 
tions were  recognized,  until  in  1711  the  court,  in  a  leading  case, 
established  the  rule  that  a  contract  in  restraint  of  trade,  upon  con- 
sideration which  shows  it  was  reasonable  for  the  parties  to  enter 
into  it,  is  good;  "that  wherever  a  sufficient  consideration  appears 
to  make  it  a  proper  and  useful  contract, ^^  and  such  as  cannot  be 
set  aside  without  injury  to  a  fair  contractor,  it  ought  to  be  main- 
tained, but  with  this  constant  diversity,  viz.,  where  the  restraint  is 
general,  not  to  exercise  a  trade  throughout  the  kingdom,  and  where 
it  is  limited  to  a  particular  place,  for  the  former  of  these  must  be 

i«  Alger  V.  Tbacher,  19  Pick.  (Mass.)  51,  31  Am.  Dec.  119.  Bee  "Contracts," 
Dec.  D iff.  (Key-No.)  §  116;    Cent.  Dig.  §§  51,2-552. 

11  A  contract  In  restraint  of  trade  must  be  based  on  a  sufficient  consid- 
eration. Ante,  p.  143.  See  Chapin  v.  Brown,  83  Iowa,  156,  48  N.  W.  1074,  12 
L.  R.  A.  428,  82  Am.  St.  Rep.  297;  Cleaver  v.  I^nhart,  182  Pa.  285,  37  Atl. 
811.  And  see  Urmston  v.  Whitelegrg,  63  Law  T.  455.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  62;  Cent.  Dig.  %  263. 
Clark  Cont.(3d  Ed.) — 25 


386  LEGALITY   OF   OBJECT  (Ch.  8 

void,  being  of  no  benefit  to  either  party,  and  only  oppressive."  ^" 
Although  in  that  case  the  restraint  was  limited  both  as  to  time  and 
space,  so  that  it  did  not  call  for  a  decision  on  a  contract  in  general 
restraint  of  trade,  it  has  since  been  assumed  in  numerous  cases,  and 
in  some  directly  decided,  that  a  contract  which  imposes  a  restraint 
which  is  unlimited  as  to  space  is  void  on  its  face.^^  In  England 
the  law  is  now  settled  that  a  restraint,  although  unlimited  as  to 
space,  is  valid,  if,  under  the  particular  circumstances,  it  is  reason- 
able/* Some  diversity  of  opinion  exists,  however,  among  the 
courts  of  this  country.^" 

In  determining  whether  a  particular  restraint  is  reasonable,  the 
court  will  consider  the  nature  and  extent  of  the  trade  or  business, 
the  situation  of  the  parties,  and  all  the  other  circumstances.  If,  on 
such  a  consideration,  the  restraint  seems  unreasonable,  the  contract 
will  be  declared  void,  however  partial  the  restraint  may  be.  As 
said  in  a  leading  case,  the  court  will  consider  "whether  the  restraint 
is  such  only  as  to  afford  a  fair  protection  to  the  interests  of  the 
party  in  favor  of  whom  it  is  given,  and  not  so  large  as  to  interfere 
with  the  interests  of  the  public.  Whatever  restraint  is  larger  than 
the  necessary  protection  of  the  party  can  be  of  no  benefit  to  either. 
It  can  only  be  oppressive,  and,  if  oppressive,  it  is,  in  the  eye  of  the 
law,  unreasonable.  Whatever  is  injurious  to  the  interests  of  the 
public  is  void  on  the  ground  of  public  policy."  ^* 

To  illustrate  this  rule,  a  retail  merchant,  a  mechanic,  or  a  profes- 
sional man,  whose  trade  or  business  does  not  extend  beyond  the 
limits  of  the  city  in  which  he  does  business,  or  the  immediate  neigh- 
borhood, may,  on  selling  his  business,  bind  himself  not  to  engage 
in  the  same  business  in  that  city  or  neighborhood.  This  is  clearly 
necessary  to  protect  the  interests  of  the  other  party. ^^     On  the 

izMitchel  v.  Reynolds,  1  P.  Wins.  181,  1  Sm.  Lead.  Cas.  694.  See  "Con- 
U-acts,"  Dec.  Dig.  {Key-^'o.)  §  111;   Cent.  Dig.  §§  554-569. 

ispost,  p.  SSa  14  Post,  p.  389.  »»Post,  p.  8S9. 

16  Horner  v.  Graves,  7  Bing.  735.  See,  also,  Rousillon  v.  Rousillon,  14  Ch. 
Div.  358 ;  HerreshoEf  v.  Boutineau,  17  R.  I.  3,  19  Atl.  712,  8  L.  R.  A.  469,  33 
Am.  St.  Rep.  850;  Keeler  v.  Taylor,  53  Pa.  467,  91  Am.  Dec.  221;  Arnold  v. 
Kreutzer,  67  Iowa,  214,  25  N.  W.  138;  Ellerman  v.  Stockyards  Co.,  49  N.  J. 
Eq.  217,  23  Atl.  287 ;  Gill  v.  Ferris,  82  Mo.  156 ;  Tecktonius  v.  Scott,  110  Wis. 
441,  86  N.  W.  672 ;  Harrison  v.  Sugar  Refining  Co.,  116  Fed.  304,  53  G.  C.  A. 
484,  58  L.  R.  A.  915;  Fisheries  Co.  v.  Lennen  (C.  C.)  116  Fed.  217;  Kron- 
Bchnabel-Smith  Co.  v.  Kronschnabel,  87  Minn.  230,  91  N.  W.  892 ;  Trentman  v. 
Wahrenburg,  30  Ind.  App.  304,  65  N.  E.  1057.  Injury  to  the  interests  of  the 
public  is  always  to  be  taken  into  consideration.  See  Western  Wooden-Ware 
Ass'n  V.  Starkey,  84  Mich.  76.  47  N.  W.  604,  11  L.  R.  A.  503,  22  Am.  St.  Rep. 
686.     See  "Contracts,"  Dec.  Dig.  (Keg-Xo.)  §  117;   Cent.  Dig.  §§  551,-569. 

17  Washburn  v.  Dosch,  68  Wis.  436,  32  N.  W.  551,  60  Am.  Rep.  873;  D wight 
V.  Hamilton,  113  Mass.  175;    Finger  v.  Hahn,  42  N.  J.  Eq.  606,  8  Atl.  654; 


§§    166-169)      AGREEMENTS  CONTRARY  TO   PUBLIC  POLICY  387 

Other  hand,  it  could  only  oppress  him,  and  could  not  benefit  the 
other  party,  to  uphold  a  promise  not  to  engage  in  the  same  busi- 
ness anywhere  in  the  state,  and  such  a  promise  would  be  unreason- 
able and  void.^'  We  can  even  imagine  cases  in  which  an  agree- 
ment by  a  person,  on  selling  his  business,  not  to  engage  in  the  same 
business  in  the  same  city,  would  be  unreasonable;  as,  for  instance, 
in  case  of  a  small  bakery  in  a  large  city,  the  trade  of  which  is  only 
in  the  vicinity  of  the  shop.  Again,  a  wholesale  merchant  selling 
only  in  a  particular  section  of  the  country  could  not,  on  selling  his 
business,  bind  himself  not  to  engage  in  the  same  business  anywhere 
in  the  United  States,  though  the  restriction  would  be  valid  if  lim- 
ited to  the  district  covered  by  his  trade,  even  though  it  might  ex- 
tend over  several  states.^®  The  business  of  some  wholesale  houses 
extends  over  the  entire  United  States,  and  even  further;  and  the 
courts,  as  we  shall  see,  show  a  tendency  in  some  of  the  modern  cas- 
es to  allow  a  restriction  coextensive  with  the  business.  Other 
courts,  however,  looking  upon  the  restraint  as  general,  hold  it  void 
on  its  face  for  that  reason  alone,  without  regard  to  what  the  in- 
terests of  the  other  party  may  require. 

A  contract  between  manufacturers  or  dealers,  not  incidental  to  a 
sale  of  the  business,  to  refrain  from  selling  or  competing,  tending, 
as  it  does,  to  destroy  competition,  and  not  being  necessary  for  the 

Linn  v.  Sigsbee,  67  111.  75 ;  Hubbard  v.  Miller,  27  Mich.  15,  15  Am.  Rep.  153 ; 
Handforth  v.  Jackson,  150  Mass.  149,  22  N.  E.  634;  Smith  v.  Leady,  47  111. 
App.  441;  McClurg's  Appeal,  58  Pa.  51;  Boutelle  v.  Smith,  116  Mass.  111. 
An  agreement  not  to  sell  a  particular  line  of  goods  in  a  certain  town  may  be 
valid,  Clark  v.  Crosby,  37  Vt.  188;  or  not  to  sell  to  anybody  in  certain  town 
or  state  except  promisee,  Newell  v.  Meyendorff,  9  Mont.  2.54,  23  Pac.  333,  8  L. 
R.  A.  440,  18  Am.  St.  Rep.  738 ;  Roller  v.  Ott,  14  Kan.  609 ;  Keith  v.  Optical 
Co.,  48  Ark.  138,  2  S.  W.  777.  The  following  agreements  have  been  held  a  rea- 
sonable restraint :  Covenant  in  deed  not  to  sell  intoxicating  liquors  on  prem- 
ises in  less  quantities  than  five  gallons,  Sutton  v.  Head,  86  Ky.  156,  5  S.  "W. 
410,  9  Am.  St  Rep.  274;  or  not  to  carry  on  trading  or  mercantile  business 
thereon,  Morris  v.  Manufacturing  Co.,  83  Ala.  505,  3  South.  689.  Agreement 
by  vendee  of  land  not  to  sell  sand  from  it.  Hodge  v.  Sloan,  107  N.  Y.  244,  17 
N.  E.  335,  1  Am.  St  Rep.  816.  Not  to  manufacture  ochre  in  certain  county. 
Smith's  Appeal,  113  Pa.  579,  6  Atl.  251.  Not  to  use  premises  sold  for  hotej 
Wittenberg  v.  Mollyneaux,  60  Neb.  583,  83  N.  W.  824..  Covenant  by  lessee  not 
to  sell  any  beer  on  premises  except  that  made  by  a  certain  company.  Ferris 
V.  Brewing  Co.,  155  Ind.  539,  58  N.  E.  701,  52  L.  R.  A.  305.  See  "Contracts," 
Dec.  Dig.   (Key-No.)  §  117;   Cent.  Dig.  §§  551,-569. 

18  See  HerreshofC  v.  Boutineau,  17  R.  I.  3,  19  Atl.  712,  8  L.  R.  A.  469,  33  Am. 
St  Rep.  850.  See  "Contracts,"  Dec.  Dig.  {Key-yo.)  §  111;  Cent.  Dig.  §§  554- 
569. 

i»  See  DIAMOND  MATCH  CO.  v.  ROEBER,  106  N.  Y.  473,  13  N.  E.  419,  60 
Am.  Rep.  464,  Throckmorton  Cas.  Contracts,  204.  See  "Contracts,"  Dec.  Dig. 
[Key-No.)  {  111;   Cent.  Dig.  §§  554-569. 


388  LEGALITY   OF   OBJECT  (Ch.  8 

protection  of  the  promisee,  has  been  held  unreasonable  and  Toid.*' 
Where  a  contract  places  it  within  the  power  of  the  contracting  par- 
ties to  at  least  partially  control  the  available  supply  of  commodities 
useful  if  not  necessary  to  at  least  a  considerable  portion  of  the  local 
public,  as  to  unreasonably  limit  the  places  where  useful  articles 
may  be  purchased,  or  to  increase  the  price  and  consequently  to  re- 
strain trade,  it  is  substantially  injurious  to  the  portion  of  the  public 
affected  thereby,  and  is  an  unreasonable,  and  consequently  an  un- 
lawful, restraint  of  trade."  '^ 

Restraint  Unlimited  as  to  Space 

As  we  have  already  stated,  it  was  for  a  long  time  thought,  both 
in  England  and  with  us,  that  a  contract  in  restraint  of  trade  was 
void  on  its  face  if  the  restraint  was  unlimited  as  to  space,  and  there 
are  modern  cases  laying  down  the  same  rule.  *' 

20  Fox  Solid  Pressed  Steel  Co.  v.  Schoen  (C.  C.)  77  Fed.  29;  Clark  v.  Need- 
ham,  125  Mich.  84,  83  N.  W.  1027,  51  L.  R.  A.  785,  84  Am.  St  Rep.  559;  Gulp 
V.  Love,  127  N.  C.  457,  37  S.  E.  476.  Contra,  Wood  v.  Whitehead  Bros.  Co.,  165 
N.  Y.  545,  59  N.  E.  857.  And  see  Oakes  v.  Water  Co.,  143  N.  T.  430,  38  N. 
B.  461,  26  L.  R.  A.  544.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  117;  Cent. 
Dig.  §§  554-569. 

21  Stewart  v.  Steams  &  Culver  Lumber  Co.,  56  Fla.  570,  48  South.  19,  24 
L.  R.  A.  (N.  S.)  649,  per  Whitfield,  J.  See  "Conlracts,"  Dec.  Dig.  (Key-No.)  S 
117;   Cent.  Dig.  §§  554-569. 

22  Alger  V.  Thacher,  19  Pick.  (Mass.)  51,  31  Am.  Dec.  119;  BISHOP  t. 
PALMER,  146  Mass.  469,  16  N.  E.  299,  4  Am.  St  Rep.  339,  Throckmorton  Cas. 
Contracts,  290 ;  Dean  v.  Emerson,  102  Mass.  480 ;  Thomas  v.  Miles'  Adm'r,  3 
Ohio  St  274 ;  Long  v.  Towl,  42  Mo.  545,  97  Am.  Dec.  355 ;  Peltz  v.  Eichele, 
62  Mo.  171 ;  Sutton  v.  Head,  86  Ky.  156.  5  S.  W.  410,  9  Am.  St.  Rep.  274 ; 
Smith's  Appeal,  113  Pa.  579,  6  Atl.  251;  Warfield  v.  Booth,  33  Md.  63;  Good- 
man V.  Henderson,  58  Ga.  567 ;  Lufkin  Rule  Co.  v.  Fringeli,  57  Ohio  St  596, 
49  N.  E.  1030,  41  L.  R.  A.  185,  63  Am.  St  Rep.  736;  Harding  v.  Glucose  Co., 
182  111.  551,  55  N.  E.  577,  64  L.  R.  A.  738,  74  Am.  St  Rep.  189  (cf.  Lanzit  v. 
Manufacturing  Co.,  184  111.  326,  56  N.  E.  393,  75  Am.  St  Rep.  171)  ;  Union 
Strawboard  Co.  v.  Bonfield,  193  111.  420,  61  N.  B.  1038,  86  Am.  St  Rep.  346. 
See,  also,  Gamewell  Fire  Alarm  Telegraph  Co.  v.  Crane,  160  Mass.  50,  35  N. 
B.  98,  22  L.  R.  A.  673,  39  Am.  St.  Rep.  458.  It  was  at  one  time  considered 
that  an  agreement  not  to  carry  on  a  business  anywhere  within  a  state,  like  an 
agreement  not  to  carry  it  on  anywhere  within  the  United  States,  was  unlim- 
ited as  to  space,  and  was  invalid  as  imposing  a  general  restraint,  Taylor  v. 
Blanchard,  13  Allen  (Mass.)  370,  90  Am.  Dec.  203;  Chappel  v.  Brockway,  21 
Wend.  (N.  T.)  157;  Wright  v.  Ryder,  36  Cal.  342,  95  Am.  Dec.  188;  More  v. 
Bonnet  40  Cal.  251,  6  Am.  Rep.  621 ;  Nobles  v.  Bates,  7  Cow.  (N.  Y.)  307  ; 
but  this  doctrine  is  now  generally  repudiated,  and  such  an  agreement  will  be 
enforced,  if,  under  the  circumstances,  the  restraint  is  reasonable  Oregon 
Steam  Nav.  Co.  v.  Winsor,  20  WaU.  64,  22  L.  Ed.  315 ;  Beal  v.  Chase,  31  Mich. 
490;  DIAMOND  MATCH  CO.  v.  ROEBER,  106  N.  T.  473,  13  N.  E.  419,  GO 
Am.  Rep.  464,  Throckmorton  Cas.  Contracts,  264,  affirming  35  Hun  (N.  Y.)  421 ; 
Herreshoff  r.  Boutineau,  17  R.  I.  3,  19  Atl.  712,  8  L.  R.  A.  469,  33  Am.  St  Rep. 
850.    See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  117;   Cent.  Dig.  §§  554-569, 


§§    166-169)      AGREEMENTS  CONTRARY   TO   PUBLIC   POLICT 


389 


The  tendency  of  the  cases  is,  however,  to  relax  the  old  rule,  and 
to  allow  a  restraint  unlimited  in  space  if  it  is  reasonable,  and  no 
broader  than  is  necessary,  for  the  protection  of  the  covenantee. 
Such  is  the  doctrine  which  is  now  established  in  England.^'  Thus, 
in  a  recent  case,'^*  where  a  patentee  and  manufacturer  of  guns  and 
ammunition  covenanted  with  a  company  to  which  his  patents  and 
business  had  been  transferred  not  to  engage,  for  twenty-five  years, 
in  the  business  of  manufacturing  guns  and  ammunition,  it  was  held 
that  the  covenant  was  not  in  restrain  of  trade.  "The  inquiry  as  to 
the  validity  of  all  covenants  in  restraint  of  trade,"  said  Lord  Ash- 
borne,  "must  now  ultimately  turn  upon  whether  they  are  reason- 
able, and  whether  they  exceed  what  is  reasonably  necessary  for  the 
covenantee."  In  this  country,  also,  the  tendency  of  the  modern 
cases  is  to  support  a  restraint,  although  unlimited  in  space,  provid- 
ed it  is  reasonably  necessary  for  the  protection  of  the  promisee.'" 

Restraint  Unlimited  as  to  Time 

It  has  been  said  without  qualification  that,  if  the  restraint  is 
reasonably  limited  as  to  space,  the  fact  that  it  is  unlimited  as 
to  time  will  not  render  the  agreement  void;  that,  for  instance, 
an  agreement  not  to  carry  on  a  trade,  business,  or  profession 
in  a  certain  city  is  valid,  though  it  may  be  agreed  that  it  shall 
never  be  carried  on  there.^'     It  is  clear,  however,  that  the  same 

28  Rousillon  V.  Rousillon,  14  Ch.  Div.  351 ;  Badische  Anilin  und  Soda  Fabrik 
T.  Schott,  [1892]  3  Ch.  447 ;  Nordenfelt  v.  Maxim-Nordenfelt  Co.,  [1894]  App. 
Cas.  535 ;  Underwood  v.  Barker,  [1899]  1  Ch.  300.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  in ;    Cent.  Dig.  §§  554-569. 

2  4  Nordenfelt  v.  Maxim-Nordenfelt  Co.,  [1894]  App.  Cas.  535.  See  "Con- 
tracts." Dec.  Dig.   (Key-No.)  §  117;    Cent.  Dig.  §§  55Jf-569. 

s  6  DIAMOND  MATCH  CO.  v.  ROEBER,  106  N.  Y.  473,  13  N.  E.  419,  60 
Am.  Rep.  464,  Throckmorton  Cas.  Contracts,  264 ;  Herreshoff  v.  Boutlneau,  17 
R.  I.  3,  19  Atl.  712,  8  L.  R.  A.  469,  33  Am.  St.  Rep.  850;  National  Ben.  Co.  v. 
Hospital  Co.,  45  Minn.  272,  47  N.  W.  806,  11  L.  R.  A.  437 ;  Gibbs  v.  Gas  Co., 
130  U.  S.  409,  9  Sup.  Ct.  553.  32  L.  Ed.  979 ;  Fowle  v.  Park,  131  U.  S.  88,  9 
Sup.  Ct.  658,  33  L.  Ed.  67;  Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.  484,  28  Atl. 
973,  23  L.  R.  A.  639,  49  Am.  St.  Rep.  784;  Carter  v.  Ailing  (C.  C.)  43  Fed. 
208*;  Richards  v.  Seating  Co.,  87  Wis.  503,  58  N.  W.  7S7;  Consumers'  Oil  Co. 
V.  Nunnemaker,  142  Ind.  560.  41  N.  E.  1048,  51  Am.  St  Rep.  193;  Anchor 
Electric  Co.  v.  Hawkes,  171  Mass.  101,  50  X.  E.  509,  41  L.  R.  A.  189,  68  Am. 
St.  Rep.  403 ;  Kramer  v.  Old,  119  N.  C.  1,  25  S.  E.  813,  34  L.  R.  A.  389,  56 
Am.  St.  Rep.  650 ;  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J.  Eq.  507,  43  Atl. 
723,  46  L.  R.  A.  255,  78  Am.  St.  Rep.  612;  Buck  v.  Coward,  122  Mich.  530,  81 
N.  W.  328;  National  Enameling  &  Stamping  Co.  v.  Haberman  (C.  C.)  120  Fed. 
415 ;  United  Shoe  Machinery  Co.  v.  Kimball,  193  Mass.  351,  79  N.  E.  790.  See 
"Contracts  in  Restraint  of  Trade,"  by  Amasa  M.  Eaton,  4  Harv.  Law  Rev.  128. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  117;   Cent.  Dig.  §§  55/,-569. 

28  Bowser  v.  Bliss,  7  Blackl.  (Ind.)  844,  43  Am.  Dec.  93;  Angler  v.  Web- 
ber, 14  Allen  (Mass.)  211,  92  Am.  Dec.  748;   Cook  v.  Johnson,  47  Conn.  17S,  30 


390  LEGALITY   OF   OBJECT  (Ch.  8 

considerations  apply  as  in  the  case  of  a  restraint  unlimited  in 
space.  A  restraint  unlimited  as  to  time  may  be  necessary  to  pro- 
tect the  party  in  whose  favor  it  is  imposed,  and  in  such  a  case 
it  will  be  upheld;  but,  if  unnecessary,  the  agreement  cannot  be 
sustained.*^ 

In  a  leading  English  case  the  defendant  had  entered  the  service 
of  the  plaintiff,  who  was  a  druggist  carrying  on  his  business  in 
the  town  of  Taunton,  as  the  plaintiff's  assistant,  under  a  contract 
whereby  he  agreed  that  he  would  not,  at  any  time  after  leaving 
the  plaintiff's  service,  engage  in  the  business  of  a  druggist  and 
chemist  in  that  town.  The  agreement  was  held  void  in  the  lower 
court  on  the  ground  that  the  restraint  was  larger  than  the  neces- 
sary protection  of  the  party  in  favor  of  whom  it  was  given  requir- 
ed.^* This  judgment  was  reversed  on  writ  of  error  on  the  ground 
that  a  restriction  so  extensive  in  point  of  time  was  necessary 
for  the  protection  of  the  promisee  in  the  enjoyment  of  the  good 
will  of  his  trade.  "The  good  will  of  a  trade,"  it  was  said  by 
Tindal,  C.  J.,  "is  the  subject  of  value  and  price.  It  may  be  sold, 
bequeathed,  or  become  assets  in  the  hand  of  the  personal  rep- 
resentative of  a  trader;  and,  if  the  restriction  as  to  time  is  to  be 
held  to  be  illegal  if  extended  beyond  the  period  of  the  party  by 
himself  cai'rying  on  the  trade,  the  value  of  such  good  will,  con- 
sidered in  those  various  points  of  view,  is  altogether  destroyed. 
If,  therefore,  it  is  not  unreasonable  (as  undoubtedly  it  is  not)  to 
prevent  a  servant  from  entering  into  the  same  tVade  in  the  same 
town  in  which  his  master  lives,  so  long  as  the  master  carries  on 
the  trade  there,  we  cannot  think  it  unreasonable  that  the  restraint 
should  be  carried  further,  and  should  be  allowed  to  continue  if 
the  master  sells  the  trade,  or  bequeaths  it,  or  it  becomes  the 
property  of  his  personal  representative."  ^^ 

Am.  Rep.  64.  See  "Contracts,"  Dec.  Dig.  (Eev-^'o.)  §  117;  Cent.  Dig.  §§  554- 
569. 

2  T  Hitchcock  V.  Coker,  6  Adol.  &  E.  453;  Smith  v.  Brown,  164  Mass.  584, 
42  N.  E.  101;  Mandeville  v.  Harman,  42  N.  J.  Eq.  185,  7  Atl.  37;  Carrl  v. 
Snyder  (N.  J.  Ch.)  26  Atl.  977;  French  v.  Parker,  16  R.  I.  219,  14  Atl.  870,  27 
Am.  St.  Rep.  733;  Trenton  Potteries  Co,  v.  Oliphant,  58  N.  J.  Eq.  507,  43 
Atl.  723,  46  L.  R.  A.  255,  78  Am.  St.  Rep.  612 ;  Up  River  Ice  Co.  v.  Denier, 
114  Mich.  296,  72  N.  W.  157,  68  Am.  St.  Rep.  480;  Eisel  v.  Hayes,  141  Ind.  41, 
40  N.  E.  119 ;  O'Neal  v.  Hines,  145  Ind.  32,  43  N.  E.  946 ;  Swanson  v.  Kirby, 
98  Ga.  586,  26  S.  E.  71 ;  RaTiestraw  v.  Lanier,  104  Ga.  188,  30  S.  E.  735,  69 
Am.  St  Rep.  154.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  117;  Cent.  Dig.  §§ 
554-569. 

28  Hitchcock  V.  Coker,  6  Adol.  &  E,  438.  See  "Contracts,"  Dec.  Dig.  {Key- 
No.)  §  117;   Cent.  Dig.  §§  554-569. 

2»  Hitchcock  V.  Coker,  6  Adol.  &  E.  453.  And  see  Pemberton  v.  Vaughan, 
10  Q.   B.  87;    Elves  v.   Crafts,  10  C.  B,  241;    Atkyns  v.  Kinnier,   4   Exch. 


166-169)       AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY 


391 


Some  courts  draw  a  distinction  between  contracts  binding  the 
promisor  to  desist  from  the  practice  of  a  learned  profession,  and 
contracts  not  to  engage  in  a  business  which,  with  its  good  will, 
the  promisor  has  sold,  holding  that  in  the  former  case  a  restraint 
unlimited  in  time  is  unreasonable.^"  Thus,  in  a  recent  New  Jersey 
case,  in  which  it  was  held  that  since  a  contract  imposing  a 
restraint  greater  than  is  necessary  to  protect  the  party  for  whose 
benefit  it  is  imposed  is  void,  a  covenant  that  a  physician  shall 
not  "at  any  time  thereafter"  engage  in  practice  in  a  certain  city 
is  void,  because  it  would  prevent  him  from  practicing  after  the 
death  of  the  other  party.^^  The  court  considered  the  English 
case  above  mentioned,  and  held  that  the  reasoning  did  not  apply. 
"The  practice  of  a  physician,"  it  was  said,  "is  a  thing  so  purely 
personal,  depending  so  absolutely  on  the  confidence  reposed  in 
his  personal  skill  and  ability,  that  when  he  ceases  to  exist  it 
necessarily  ceases  also,  and  after  his  death  can  have  neither  an 
intrinsic  nor  a  market  value."  The  contrary,  however,  has  been 
held  in  Rhode  Island.  The  reason  of  the  English  decisions  men- 
tioned above,  it  was  said,  "is  as  valid  in  the  case  of  a  profession 
as  of  a  trade;  for  whether,  technically  speaking,  there  be  *ny 
good  will  attending  a  profession  or  not,  the  professional  prac- 
tice itself  would  probably  sell  for  more  with  the  restraining  con- 
tract, if  the  restraint  were  unlimited  in  duration,  than  it  would 
if  the  restraint  were  for  the  life  of  the  promisee  or  covenantee 
only.  If  the  complainant  here  wished  to  retire  from  his  practice 
and  sell  it,  he  could  probably  sell  it  for  more  if  he  would  secure 
the  purchaser  from  competition  forever  than  he  could  if  he  could 
only  secure  him  from  such  competition  during  his  own  life.  So, 
if  he  wished  to  take  in  a  partner,  he  could  for  the  same  reason 
make  better  terms  with  him."  *^ 

(Welsb.,  H.  &  G.)  782;  Bowser  v.  Bliss,  7  Blackf.  (Ind.)  344,  43  Am.  Dec  93. 
See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  117;   Cent.  Dig.  §§  554-569. 

80  Mandeville  v.  Harman,  42  N.  J.  Eq.  185,  7  Atl.  37 ;  Rakestraw  v.  Lanier, 
104  Ga.  188,  30  S.  E.  735,  69  Am.  St.  Rep.  154.  See  "Contracts,"  Dec.  Dig 
{Key-No.)  §  in;  Cent.  Dig.  §§  554-569. 

81  Mandeville  v.  Harman,  42  N.  J.  Eq.  185,  7  Atl.  37.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  111;  Cent.  Dig.  §§  554-569. 

8  2  French  v.  Parker,  IG  R.  I.  21&,  14  Atl.  870,  27  Am.  St.  Rep.  733.  To  the 
same  effect,  see  Butler  v.  Burleson,  16  Vt  176;  Martin  v.  Murphy,  129  Ind. 
464,  28  N.  E.  1118;  Linn  v.  Sigsbee,  67  111.  75;  McClurg's  Appeal,  58  Pa.  51; 
Miller  t.  Elliott,  1  Ind.  484,  50  Am.  Dec.  475;  Cook  v.  Johnson,  47  Conn.  175, 
38  Am.  Rep.  64;  Doty  v.  Martin,  32  Mich.  462;  Timmerman  v.  Dever,  52 
Mich-  34,  17  N.  W.  230,  50  Am.  Rep.  240;  Cole  v.  Edwards,  93  Iowa,  477,  61 
N.  W.  940;  McCurry  v.  Gibson,  108  Ala.  451,  18  South.  80G,  54  Am.  St.  Rep. 
177 ;  Tillinghast  v.  Boothby,  20  R,  I.  59,  37  Atl.  344 ;  Ryan  v.  Hamilton,  205 
111.  191,  68  N.  E.  781.    Agreement  never  to  practice  law  In  a  particular  town. 


392  LEGALITY   OF   OBJECT  (Ch.  8 

Sale  of  Secret  Process 

A  person  engaged  in  manufacturing  an  article  by  a  secret  process 
may  sell  the  business  and  secret,  and  make  a  valid  promise  not 
to  divulge  the  secret  to  any  one  else,  nor  to  engage  himself  at 
any  time  in  manufacturing  by  that  process.  Such  a  restraint 
is  necessary  to  protect  the  other  party,  and  does  not  unduly 
prejudice  the  public.  In  speaking  of  such  a  contract,  it  was  said 
by  the  New  York  court,  in  a  late  case,  that  it  "simply  left  mat- 
ters substantially  as  they  were  before  the  sale,  except  that  the 
seller  of  the  secret  had  agreed  that  she  would  not  destroy  its  value 
after  she  had  received  full  value  for  it.  The  covenant  was  not 
in  general  restraint  of  trade,  but  was  a  reasonable  measure  of 
mutual  protection  to  the  parties,  as  it  enabled  the  one  to  sell  at 
the  highest  price,  and  the  other  to  get  what  he  paid  for.  It  im- 
posed no  restriction  upon  either  that  was  not  beneficial  to  the 
other  by  enhancing  the  price  to  the  seller,  or  protecting  the 
purchaser.  Recent  cases  make  it  very  clear  that  such  an  agree- 
ment is  not  opposed  to  public  policy,  even  if  the  restriction  was 
unlimited  as  to  both  time  and  territory."  '" 

Agreement  to  Assign  Future  Patents 

A  general  assignment,  or  agreement  to  assign,  all  inventions 
thereafter  made  by  a  party,  is  not  only  contrary  to  public  policy, 
but  is  void  under  the  patent  laws  of  the  United  States.'*  But  a 
contract  to  assign  future  inventions  is  valid,  where  it  relates  to 
a  particular  subject  and  imposes  only  such  restraint  upon  the 
assignor  as  is  fairly  and  reasonably  necessary  for  the  protection 
of  the  assignee  under  all   the  circumstances  of  the   case.'"'     An 

Smalley  v.  Greene,  52  Iowa,  241,  3  N.  W.  78,  35  Am.  Rep.  267;  Bunn  v.  Guy, 
4  East,  190.  Agreement  not  to  practice  dentistry  in  a  particular  town.  Tur- 
ner V.  Abbott,  116  Tenn.  718,  94  S.  W.  64,  6  L.  R.  A.  (N.  S.)  892,  8  Ann.  Gas. 
150.    See  ''Contracts,"  Dec.  Big.  {Key-No.)  §  117;  Cent.  Dig.  §§  55^-^69. 

83  TODE  V.  GROSS,  127  N.  Y.  480,  28  N.  E.  469,  13  L.  R.  A.  652,  24  Am.  St. 
Rep.  475,  Throckmorton  Gas.  Contracts,  270  (affirming  51  Hun,  644,  4  N.  Y. 
Supp.  402).  And  see  Fowle  v.  Park,  131  U.  S.  88,  9  Sup.  Ct.  658,  33  L.  Ed. 
67;  Wiley  v.  Baumgardner,  97  Ind.  66,  49  Am.  Rep.  427;  Vickery  v.  Welch, 
19  Pick.  (Mass.)  523;  Peabody  v.  Norfolk,  98  Mass.  452,  96  Am.  Dec.  664; 
Jarvis  v.  Peck,  10  Paige  (N.  Y.)  118.  Condition  of  contract  of  employment 
that  servant  shall  not  use  or  divulge  trade  secrets  is  not  invalid  as  in  restraint 
of  trade.  Thum  Co.  t.  Tloczynski,  114  Mich,  149,  72  N.  W.  140,  38  L.  K.  A. 
200,  68  Am.  St  Rep.  469;  Simmons  Medicine  Co.  v.  Simmons  (C.  C.)  81  Fed. 
163 ;  McCall  Co.  v,  Wright,  198  N.  Y.  143,  91  N,  E.  516,  .31  L.  R.  A.  (N.  S.) 
249.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  117;  Cent.  Dig.  §§  554-569. 

34  Rev,  St  §  4898  (U.  S.  Comp.  St.  1901,  p.  3387),  See  Consolidated  Ry., 
etc.,  Co.  V.  United  States  Light  &  Pleating  Co.,  77  N.  J.  Eq.  285,  78  Atl.  684, 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig.  §  552. 

88  Consolidated  Ry.,  etc,  Co.  v.  United  States  Light  &  Heating  Co.,  supra ; 


§§    170-172)     AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  898 

illustration  of  such  a  reasonable  and  valid  contract  is  a  contract 
for  the  sale  of  letters  patent  for  a  machine,  "together  with  all 
improvements  I  may  hereafter  make."  " 

SAME— UNLAWFUL  COMBINATIONS— MONOPOLIES, 

TRUSTS,  ETC. 

170.  A   combination  between   dealers   in   a   necessary   commodity 

to  control  and  enhance  the  price  by  preventing  competi- 
tion in  the  sale  thereof,  or  by  decreasing  the  production, 
or  by  withholding  it  from  the  market,  or  other  illegitimate 
means,  is  contrary  to  public  policy. 

171.  Combinations  to  prevent  competition  have  been  allowed  under 

particular  circumstances. 

172.  A  combination  between  laborers,  mechanics,  and  other  work- 

men to  control  the  price  of  their  labor,  by  the  weight  of 
authority,  is  lawful  if  unlawful  or  unreasonable  means  for 
accomplishing  the  object  are  not  contemplated,  the  mere 
fact  of  combination  to  control  the  price  of  labor  not  being 
per  se  illegal. 

A  monopoly,  as  now  understood,  is  a  combination  the  tendency 
of  which  is  to  prevent  competition  and  to  control  prices  to  the 
detriment  of  the  public."  So  a  trust,  as  the  term  is  commonly 
employed,  is  a  combination  for  the  purpose  of  establishing  a  mo- 
nopoly.^*   To  render  a  contract  void  on  the  ground  that  its  object 

Reece  Folding  Machine  Co.  v.  Fenwick,  140  Fed.  287,  72  C.  C.  A.  39,  2  L.  R.  A. 
(N.  S.)  1094  and  note ;  Westinghouse  Air  Brake  Co.  v.  Chicago  Brake  &  Mfg. 
Co.  (C.  C.)  85  Fed.  786.  And  see  Printing  &  Numerical  Registering  Co.  v. 
Sampson,  L.  R.  19  Eq.  462.  Contract  of  employment  between  company  using 
patented  machines  and  mechanic,  which  requires  that  improvements  in  ma- 
chines made  by  mechanic  shall  belong  to  company,  is  not  unreasonable. 
Hulse  V.  Machine  Co.,  65  Fed.  864,  13  C.  C.  A.  180.  See  "Contracts,"  Dec. 
Dig.   (Key-No.)   §  116;    Cent.  Dig.  §  552. 

seAspinwall  Mfg.  Co.  v.  Gill  (C.  C.)  32  Fed.  697.  -See  "Contracts;'  Dec. 
Dig.  {Key-No.)  §  116;  Cent.  Dig.  §  552. 

8  7  Pocahontas  Coke  Co.  v.  Powhatan  Coal  &  Coke  Co..  60  W.  Va.  508,  56 
S  E.  264,  10  L.  R.  A.  (N.  S.)  208.  116  Am.  St  Rep.  901,  9  Ann.  Cas.  607. 
And  see  STANDARD  OIL  CO.  OP  NEW  JERSEY  v.  UNITED  STATES,  221 
U.  S.  1,  31  Sup.  Ct.  502,  55  L.  Ed.  619,  34  L.  R.  A.  (N.  S.)  834,  Ann.  Cas. 
1912D,  734,  Throckmorton  Cas.  Contracts,  274.  See  "Contracts,"  Dec.  Dig. 
{Key-No.)  §  116;    Cent.  Dig.  §§  5-',2-552. 

88  Pocahontas  Coke  Co.  v.  Powhatan  Coal  &  Coke  Co.,  60  W.  Va.  508,  56 
S.  E.  264.  10  L.  R.  A.  (N.  S.)  268,  110  Am.  St.  Rep.  901,  9  Ann.  Cas.  667. 
Bee  "Contracts,"  Dec.  Dig.  {Key-No.)  %  116;   Cent.  Dig.  §§  5^Z-552. 


394  LEGALITY   OF  OBJECT  (Ch.  8 

is  to  establish  a  monopoly  or  trust,  it  is  not  necessary  to  prove 
any  evil  intent  of  the  parties  or  actual  injury  to  the  public. 
It  is  sufficient  to  show  that  the  necessary  tendency  of  the  con- 
tract is  to  control  prices,  limit  production,  or  suppress  competition 
in  such  a  v^^ay  as  to  create  a  monopoly  to  the  injury  of  the 
public,^®  So  it  is  not  necessary  to  shov^  that  the  contract  relates 
to  one  of  the  prime  necessaries  of  life.  It  is  sufficient  that  it 
relates  to  a  legitimate  article  of  trade  or  commerce  in  extensive 
use.*** 

The  law  does  not  undertake  to  say  to  a  dealer  in  a  commodity, 
even  though  it  may  be  one  of  the  necessaries  of  life,  that  he  shall 
not  sell  it  above  a  certain  price,  nor  to  compel  him  to  sell  it  at  all. 
Singly,  he  may  suspend  sales  and  raise  the  price  to  suit  his  own 
interests,  though  it  may  be  detrimental  to  the  public  interest. 
The  law  does,  however,  condemn  a  combination  between  several 
manufacturers  or  dealers  in  a  necessary  commodity,  the  object 
of  which  is  to  control  and  enhance  the  price  by  preventing  com- 
petition in  the  sale  thereof,  or  by  decreasing  the  production,  or 
by  withholding  it  from  the  market,  or  other  illegitimate  means. 
"When  competition  is  left  free,"  it  was  said  by  the  Pennsylvania 
court,  in  holding  a  combination  between  coal  companies  void, 
"individual  error  or  folly  will  generally  find  a  correction  in  the 
conduct  of  others.  But  here  the  companies  have  combined  to- 
gether to  govern  the  supply  and  the  price  of  coal.  *  *  *  This 
combination  has  a  power  in  its  confederated  forms  which  no 
individual  can  confer.  The  public  interest  must  succumb  to  it, 
for  it  has  left  no  competition  free  to  correct  its  baleful  influence. 
When  the  supply  of  coal  is  suspended,  the  demand  for  it  becomes 
importunate,  and  prices  must  rise;  or,  if  the  supply  goes  for- 
ward, the  price  fixed  by  the  confederates  must  accompany  it.' 
*  *  *  The  influence  of  a  lack  of  supply,  or  a  rise  in  the  price, 
of  an  article  of  such  prime  necessity,  cannot  be  measured.  *  ♦  * 
Such  a  combination  is  more  than  a  contract;    it  is  an  offense."*^ 

,8  9  Pocahontas  Coke  Co.  v.  Powhatan  Coal  &  Coke  Co.,  60  W.  Va.  508,  56 
S.  E.  264,  10  L.  R.  A.  (N.  S.)  2G8,  116  Ani.  St.  Rep.  901,  9  Ann.  Cas.  667; 
Charleston  Natural  Gas  Co.  v.  Kanawha  Natural  Gas,  Light  &  Fuel  Co.,  58 
W.  Va.  22,  50  S.  E.  876,  112  Am.  St.  Rep.  936,  6  Ann.  Cas.  154.  See  "Con- 
tracts;' Dec.  Dig.   {Key-No.)  §  116;    Cent.  Dig.  §§  5Ji2-552. 

*o  United  States  v.  Addyston  Pipe  &  Steel  Co.,  85  Fed.  271,  29  C.  C.  A.  141, 
46  L.  R.  A.  122.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  116;  Cent.  Dig.  §§ 
542-552. 

*i  Morris  Run  Coal  Co.  v.  Coal  Co.,  68  Pa.  173,  8  Am.  Rep.  159.  See,  also, 
Craft  V.  MeConoughy,  79  111.  346,  22  Am.  Rep.  171;  Central  Ohio  Salt  Co. 
V.  Guthrie,  35  Ohio  St.  666;  Arnot  v.  Coal  Co.,  68  N,  Y.  558,  23  Am.  Rep.  190; 
Richardson  v.  Buhl,  77  Mich.  632,  43  N.  W.  1102,  6  L.  R.  A.  457;  People  v. 


§§    170-172)     AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY 


395 


Such  agreements  as  these  tend  to  create  monopolies  and  stifle 
competition.  They  are  not  only  void  at  common  law,  but  in 
most  jurisdictions  have  been  expressly  declared  void  by  statute, 
and  to  the  extent  that  they  affect  interstate  or  foreign  commerce 
they  are  declared  void  by  the  act  of  congress  commonly  called 
the  Sherman,  or  anti-trust,  act.*^ 

Some  combinations  between  dealers  are  legitimate,  and  have 
been  sustained,  though  the  object  was,  to  a  certain  extent,  to  pre- 
vent competition  and  enhance  prices.*'  The  line  between  combi- 
nations that  are  lawful  and  those  that  are  unlawful  is  not  clear, 
and  the  cases  are  not  uniform.  It  has  been  held  that  an  agree- 
ment between  partners  not  to  sell  below  a  certain  price  is  not 

Refining  Co.,  121  N.  Y.  582,  24  N.  E.  834,  9  L.  R.  A.  33,  18  Am.  St.  Rep.  843; 
Urmston  v,  Whitelegg,  63  Law  T.  455 ;  De  Witt  Wire-Clotli  Co.  v.  Wire-Cloth 
Co.,  16  Daly,  529,  14  N.  Y.  Supp.  277 ;  Judd  v.  Harrington,  139  N.  Y.  105,  34 
N.  E.  790;  Strait  v.  Harrow  Co.  (Sup.)  18  N.  Y.  Supp.  224;  Nester  v.  Brewing 
Co.,  161  Pa.  473,  29  Atl.  102,  24  L.  R.  A.  247,  41  Am.  St.  Rep.  894 ;  State  v. 
Oil  Co.,  49  Ohio  St.  137,  30  N.  E.  279,  15  L.  R.  A.  145,  34  Am.  St  Rep.  541 ; 
Santa  Clara  Valley  Mill  &  Lumber  Co.  v.  Hayes,  76  Cal.  387,  18  Pac.  391, 
9  Am.  St  Rep.  211 ;  Leonard  v.  Poole,  114  N.  Y.  371,  21  N.  E.  707,  4  L.  R.  A. 
728,  11  Am.  St.  Rep.  607;  People  v.  Milk  Exchange,  145  N.  Y.  267,  39  N.  B. 
1002,  27  L.  R.  A.  437,  45  Am.  St  Rep.  609;  Milwaukee  Masons'  &  Builders' 
Ass'n  V.  Niezerowski,  95  Wis.  129,  70  N.  W.  166,  37  L.  R.  A.  127,  00  Am.  St 
Rep.  97 ;  Trenton  Potteries  Co.  v.  Oliphant  58  N.  J.  Eq.  507,  43  Atl.  723,  48 
L.  R.  A.  255,  78  Am.  St  Rep.  612.  See  ''Contracts"  Dec.  Dig.  {Key-No)  §  116; 
Cent.  Dig.  §§  542-552. 

4  2  Act  Cong.  July  2,  1890,  c.  647,  26  Stat  209  (U.  S.  Comp.  St  1901,  p. 
3200),  by  which  every  contract  or  combination  in  the  form  of  a  trust  or  other- 
wise, or  conspiracy  in  restraint  of  trade  or  commerce  among  the  several 
states  or  with  foreign  nations,  is  declared  illegal;  and  every  person  who 
monopolizes,  or  attempts  or  combines  or  conspires  with  another  to  monopolize, 
any  part  of  such  trade  or  commerce  is  made  guilty  of  a  misdemeanor.  This 
act,  as  construed  by  the  United  States  supreme  court  in  the  celebrated  case 
of  STANDARD  OIL  CO.  OF  NEW  JERSEY  v.  UNITED  STATES,  221  U.  S.  1, 
31  Sup.  Ct  502,  55  L.  Ed.  619,  34  L.  R.  A.  (N.  S.)  834,  Ann.  Cas.  1912D,  734, 
Throckmorton  Cas.  Contracts,  274,  has  been  held  to  render  Illegal  and  void 
only  contracts  in  "unreasonable"  restraint  of  trade.  See,  also.  United  States 
V,  American  Tobacco  Co.,  221  U.  S.  106,  31  Sup.  Ct  632,  55  L.  Ed.  603;  United 
States  V.  E.  C.  Kight  Co.,  156  U.  S.  1,  15  Sup.  Ct  249,  39  L.  Ed.  825 ;  Hopkins 
V.  United  States,  171  U.  S.  578,  19  Sup.  Ct  40,  43  L.  Ed.  290;  Anderson  v. 
United  States,  171  U.  S.  604,  19  Sup.  Ct  50,  43  L.  Ed.  300 ;  Northern  Securities 
Co.  V.  United  States,  193  U.  S.  197,  24  Sup.  Ct  436,  48  U  Ed.  679.  See  "Con- 
tracts," Dec.  Dig.  {Key-No.)  §  116;  Cent.  Dig.  §§  5^2-552;  "Monopolies;'  Dec. 
Dig.  {Key-No.)  §§  12-20;  Cent.  Dig.  §§  10-lJ,. 

43  See  Bohn  Mfg.  Co.  v.  Ilollis,  54  Minn.  223,  55  N.  W.  1119,  21  L.  R.  A. 
337,  40  Am.  St.  Rep.  319.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  %  116;  Cent. 
Dig.  §§  542-552. 


396  LEGALITY   OF   OBJECT  (Ch.  8 

unlawful  where  there  is  no  intention  to  create  a  monopoly  and 
control  prices.** 

The  rule  that  combinations  to  prevent  competition  and  enhance 
prices  are  illegal  has  been  held,  in  the  absence  of  statute,  not  to 
apply  to  a  combination  between  manufacturers  of  an  article  which 
is  not  a  necessity,  where  the  agreement  puts  no  restraint  on  the 
production  and  sale  of  the  article.  In  a  Massachusetts  case  sev- 
eral rival  manufacturers  and  sellers  of  a  certain  fixture,  under 
patents  owned  by  them,  who  were  the  principal  dealers  in  the 
article,  and  substantially  supplied  the  market  with  it,  entered 
into  a  combination  to  prevent  competition  between  them,  and  it 
was  upheld.  "In  effect,"  it  was  said,  "it  is  an  agreement,  be- 
tween three  makers  of  a  commodity,  that  for  three  years  they  will 
sell  it  at  a  uniform  price  fixed  at  the  outset,  and  to  be  changed 
only  by  consent  of  a  majority  of  them.  The  agreement  does  not 
refer  to  an  article  of  prime  necessity,  nor  to  a  staple  of  commerce, 
nor  to  merchandise  to  be  bought  and  sold  in  the  market,  but  to  a 
particular  curtain  fixture  of  the  parties'  own  manufacture.  It 
does  not  look  to  affecting  competition  from  outside  (the  parties 
have  a  monopoly  by  their  patents),  but  only  to  restrict  competition 
in  price  between  themselves.  Even  if  such  an  agreement  tends 
to  raise  the  price  of  the  commodity,  it  is  one  which  the  parties  have 
a  right  to  make.  To  hold  otherwise  would  be  to  impair  the 
right  of  persons  to  make  contracts  and  to  put  a  price  on  the  prod- 
ucts of  their  own  industry.  But  we  cannot  assume  that  the  pur- 
pose and  effect  of  the  combination  are  to  unduly  raise  the  price 
of  the  commodity.  A  natural  purpose  and  a  natural  effect  are  to 
maintain  a  fair  and  uniform  price,  and  to  prevent  the  injurious 
effects,  both  to  producers  and  customers,  of  fluctuating  prices 
caused  by  undue  competition.  When  it  appears  that  the  combi- 
nation is  used  to  the  public  detriment,  a  different  question  will 
be  presented  from  that  now  before  us.  The  contract  is  apparently 
beneficial  to  the  parties  to  the  combination,  and  not  necessarily 
injurious  to  the  public,  and  we  know  of  no  authority  or  reason 
for  holding  it  to  be  invalid,  as  in  restraint  of  trade  or  against  public 
policy."  *'^ 

**  Marsh  v.  Russell,  66  N.  T.  288.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  $ 
116;  Cent.  Dig.  §§  5J,2-552. 

*5  Central  Shade  Roller  Co.  v.  Cushman,  143  Mass.  3.53,  9  N.  B.  629.  And 
see  Dolph  v.  Machinery  Co.  (C.  C.)  28  Fed.  553 ;  Skrainka  v.  Scharringhauscu, 
8  Mo.  App.  522 ;  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J.  Eq.  507,  43  Atl.  723, 
46  L.  R.  A.  2.j5,  78  Am.  St  Rep.  612.  A  contract  by  which  three  of  four  com- 
panies engaged  In  the  manufacture  of  oleomargine  consolidate  as  a  corpora- 
tion, tor  the  purpose  of  stopping  the  sharp  competition  between  them,  and 


§§    170-172)     AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  397 

On  the  other  hand,  however,  if  it  clearly  appears  that  the 
object  of  the  contract  is  not  the  reasonable  protection  of  a  busi- 
ness or  profession,  but  rather  to  create  a  monopoly  and  control 
the  price  of  an  article  of  common  utility  or  common  consumption, 
the  contract  is  illegal,  even  though  the  article  is  not  one  of  the 
prime  necessaries  of  life.*' 
"Corners"  in  the  Market 

There  are  few  combinations  more  clearly  contrary  to  public  pol- 
icy^than  agreements  to  create  what  are  known  as  "corners"  in  the 
market,  as  where  several  persons  enter  into  a  combination  to  buy 
up  more  of  a  commodity  than  there  is  in  the  market,  so  as  to  force 
a  fictitious  and  unnatural  rise  in  values,  with  a  view  of  taking  ad- 
vantage of  dealers  and  purchasers  whose  necessities  compel  them 
to  buy.*''  A  combination  to  create  a  corner  in  one  of  the  neces- 
saries of  life  is  not  only  illegal,  but  is  criminal.  A  combination  to 
acquire  a  controlling  interest  in  the  stock  of  a  corporation  for  the 
purpose  of  creating  a  corner  in  the  stock  market,  though  probably 
not  criminal,  is  at  least  illegal.** 
Monopolies  under  Patents 

The  rule  against  contracts  in  restraint  of  trade  and  monopolies 
does  not  apply  to  contracts  in  reference  to  the  prpduction  and  sale 
•of  a  patented  article.  It  is  the  purpose  of  a  patent  to  give  the  in- 
ventor a  monopoly.     It  is  a  monopoly  authorized  by  the  govern- 

agree  that  none  shall  separately  engage  In  the  business  for  five  years,  held 
not  invalid  as  creating  a  monopoly.  Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.  484, 
28  Atl.  973,  23  L.  R.  A,  639,  49  Am.  St.  Rep.  784.  There  can  be  no  monopoly 
in  anything  but  property,  and  news  is  not  a  subject  of  property  until  pub- 
lished and  copyrighted,  and  hence  a  corporation  engaged  in  gathering  and 
transmitting  news  for  publication  cannot  be  compelled  to  furnish  to  a  news- 
paper the  same  service  extended  to  others.  State  v.  Associated  Press,  159 
Mo.  410.  60  S.  W.  91,  51  L.  R.  A.  151,  81  Am.  St.  Rep.  368.  Contra,  Inter- 
Ocean  Pub.  Co.  V.  Associated  Press,  184  111.  438,  56  N.  E.  822,  48  L.  R.  A. 
568,  75  Am.  St.  Rep.  184.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Cent. 
Dig.  §§  542-552. 

♦  «  Emery  v.  Candle  Co.,  47  Ohio  St.  320,  24  N.  E.  660,  21  Am.  St.  Rep.  819 
(candles)  ;  Cummings  v.  Stone  Co.,  164  N.  Y.  401,  58  N.  E.  525,  52  L.  R.  A. 
262,  79  Am.  St.  Rep.  655  (Hudson  river  bluestone)  ;  Cohen  v.  Envelope  Co., 
166  N.  Y.  292,  59  N.  EL  906  (envelopes) ;  Tuscaloosa  Ice  Mfg.  Co.  v.  Williams, 
127  Ala.  110,  28  South.  669,  50  L.  R.  A.  175,  85  Am.  St.  Rep.  125  (ice)  ; 
Arctic  Ice  Co.  v.  Franklin  Electric  &  Ice  Co.,  145  Ky.  32,  139  S.  W.  1080. 
Sec  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Coit.  Dig.  §§  5^2-552. 

4  7  Wright  v.  Crabbs,  78  Ind.  487;  Raymond  v.  I^eavitt,  46  Mich.  447,  9  N. 
W.  525,  41  Am.  Rep.  170;  Samuels  v.  Oliver,  130  111.  73,  22  N.  E.  499.  See 
"Gaming,"  Dec.  Dig.  (Key-No.)  §  11;  "Monopolies,"  Dec.  Dig.  (Key-No.)  §§ 
^-31. 

•«8  Sampson  v.  Shaw,  101  Mass.  145,  3  Am.  Rep.  327.  Bee  "Contracts,"  Dec. 
Dig.  (Key-No.)  {  116;  Cent.  Dig.  §S  542-550. 


398  LEGALITY   OF  OBJECT  (Ch.  8 

merit.  In  upholding  an  agreement  by  a  patentee  to  allow  an  as- 
sociation and  its  members  the  exclusive  use  and  sale  of  inventions 
patented  by  him,  it  v^as  said:  "The  owner  does  not  possess  his 
patent  upon  the  condition  that  he  shall  make  or  vend  the  article 
patented,  or  allow  others  to  do  so  for  a  fair  and  reasonable  compen- 
sation. *  *  *  Considerations  which  might  obtain  if  the  agree- 
ment were  in  regard  to  other  articles  cannot  be  of  any  weight  in  the 
decision  of  the  questions  arising  upon  an  agreement  as  to  patented 
articles."  *°  Patents,  however,  confer  no  right  upon  the  owners  of 
several  distinct  patents  to  combine  for  the  purpose  of  restraining 
competition  and  trade,  and  such  a  combination  is  unlawful. '^° 

Contracts  for  the  sale  of  proprietary  medicines  manufactured  un- 
der a  secret  formula  have  been  held  by  the  United  States  supreme 
court  not  to  be  subject  to  the  rules  governing  the  manufacture  and 
sale  of  patented  articles,  and  contracts  for  the  sale  of  such  proprie- 
tary medicines,  which  fix  the  price  of  resale  and  impose  other  re- 
strictions upon  the  purchaser,  have  accordingly  been  declared 
void.^^ 
Combinations  between  Laborers,  Mechanics,  and  Other  Workmen 

If  dealers  cannot  combine  to  stifle  competition  and  control  the 
price  of  a  commodity,  it  may  seem  reasonable  to  suppose  that  work- 
men cannot  combine  to  control  the  price  of  their  labor.  Authority 
for  declaring  that  the  same  principle  applies  is  not  wanting.  In  an 
Illinois  case,  a  large  number  of  the  law  stenographers  of  Chicago 
formed  an  association,  and  fixed  a  schedule  of  prices  which  should 
be  binding  on  them.     The  court  held  that  it  was  contrary  to  pub- 

*  >  Good  V.  Daland,  121  N.  Y.  1,  24  N.  E.  15.  And  see  Morse  Twist  Drill. 
&  Mach.  Co.  V.  :\Iorse,  103  Mass.  73,  4  Am.  Rep.  .^13 ;  Bowling  v.  Taylor  (O.  C) 
40  Fed.  404;  Gloucester  Isinglass  &  Glue  Co.  v.  Cement  Co.,  154  Mass.  92, 
27  N.  E.  1005,  12  L.  R.  A.  563,  26  Am.  St.  Rep.  214;  Printing  &  Numerical 
Reg.  Co.  V.  Sampson,  L.  R.  19  Eq.  462;  Garst  v.  Harris,  177  Mass.  72,  58 
N.  E.  174;  ante,  p.  39^  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Cent. 
Dig.  §  552. 

BOA  combination  among  manufacturers  of  harrows,  by  which  each  assigns 
to  a  corporation  patents  under  which  he  is  operating,  and  takes  back  an  ex- 
clusive license  to  make  and  sell  the  same  style  of  harrow  previously  made 
by  him,  and  no  other,  all  to  sell  at  uniform  prices,  held  to  be  unlawful.  Na- 
tional Harrow  Co.  v.  Hench  (C.  C.)  76  Fed.  667;  Id.,  83  Fed.  36,  27  C.  C.  A. 
349,  39  L.  R.  A.  299.  See,  also,  National  Harrow  Co.  v.  Quick  (C.  C.)  67  Fed. 
13o';  Strait  v.  Harrow  Co.  (Sup.)  IS  N.  Y.  Supp.  224.  See  ^'Contracts,"  Dec. 
Dig.  (Key-No.)  §  116;  Cent.  Dig.  §  552. 

51  Dr.  Miles  Medical  Co.  v.  John  D.  Park  &  Sons  Co.,  220  U.  S.  373,  31  Sup. 
Ct.  376,  55  L.  Ed.  502  [affirming  164  Fed.  803,  90  C.  C.  A.  579].  And  see  to 
the  same  effect,  W.  H.  Hill  Co.  v.  Gray  &  Worcester,  163  Mich.  12.  127  N.  W 
803,  30  L.  R.  A.  (N.  S.)  327.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116; 
Cent.  Dig.  §§  542-552. 


§§    170-172)      AGREEMENTS  CONTRARY  TO   PUBLIC   POLICY  399 

He  policy  and  illegal,  citing,  in  support  of  the  judgment,  cases  in 
which  dealers  in  commodities  and  proprietors  of  boats  had  combin- 
ed for  a  similar  purpose.  "All  of  the  members  of  the  association," 
it  was  said,  "are  engaged  in  the  same  business  within  the  same  ter- 
ritory, and  the  object  of  the  association  is  purely  and  simply  to 
silence  and  stifle  all  competition  as  between  its  members.  No  equi- 
table reason  for  such  restraint  exists,  the  only  reason  put  forward 
being  that,  under  the  influence  of  competition  as  it  existed  prior 
to  the  organization  of  the  association,  prices  for  stenographic  work 
had  been  reduced  too  far,  and  the  association  was  organized  for  the 
purpose  of  putting  an  end  to  all  competition,  at  least  as  between 
those  who  could  be  induced  to  become  members.  True,  the  re- 
straint is  not  so  far  reaching  as  it  would  have  been  if  all  the  ste- 
nographers in  the  city  had  joined  the  association,  but,  so  far  as  it 
goes,  it  is  precisely  of  the  same  character,  produces  the  same  re- 
sults, and  is  subject  to  the  same  legal  objection."  " 

By  most  courts,  however,  it  is  held  that  combinations  between 
laborers,  mechanics,  or  other  workmen  are  valid,  even  though  the 
object  be  to  prevent  competition  and  maintain  prices,  provided  the 
provisions  for  that  purpose  are  reasonable."^^  Greenhood  '^*  lays 
down  the  rule  (no  doubt  established  by  the  weight  of  authority) 
that  "combinations  of  artisans  for  their  common  benefit,  as  for  the 
development  of  skill  in  their  trade,  or  to  prevent  overcrowding 
therein,'"  or  to  encourage  those  belonging  to  their  trade  to  enter 
their  fold,"^'  or  for  the  purpose  of  raising  the  prices  of  labor,"  are 
valid,  provided  no  force  or  other  unlawful  means  be  employed  to 

6  2  More  V.  Bennett,  140  111.  69,  29  N.  E.  888,  15  L.  R.  A.  361,  33  Am.  St. 
Rep.  216.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig.  §§  5J,2-552. 

53  Collins  V.  Locke,  4  App.  Cas.  674.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
i  116;  Cent.  Dig.  §§  5^2-552. 

54  Greenh.  Pub.  Pol.  rule  546. 

65  Snow  V.  Wheeler,  113  Mass.  179.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  116;  Cent.  Dig.  §§  542-552;  "Trade  Unions,"  Dec.  Dig.  (Key-No.)  §  1;  Cent. 
Dig.  §§  1-6. 

5  6  Com.  V.  Hunt,  4  Mete.  (Mass.)  Ill,  38  Am.  Dec.  346.  In  this  case  a  rule 
of  an  association  forbade  its  members  to  work  for  any  one  who  should  em- 
ploy nonunion  members,  and  yet  the  combination  was  held  not  illegal.  This, 
however,  was  a  criminal  prosecution,  and  this  fact  may  be  important.  Many 
acts  and  objects  render  a  contract  illegal  as  being  contrary  to  public  policy 
which  would  not  render  the  parties  liable  to  a  criminal  prosecution.  See 
Greenh.  Pub.  Pol.  648,  note  2.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116; 
Cent.  Dig.  §§  5J,2-552. 

6  7  Collins  V.  Locke,  4  App.  Cas.  674;  Master  Stevedores'  Ass'n  v.  Walsh. 
2  Daly  (N.  Y.)  1;  Herriman  v.  Men/.les,  115  Cal.  16,  44  Pac.  660,  46  Pac.  730, 
35  L.  R.  A.  318,  56  Am.  St.  Rep.  81.  But  see  People  v.  Fisher,  14  Wend.  (N.  Y.) 
9,  28  Am.  Dec.  501.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig. 
S§  542-552. 


400  LEGALITY   OF  OBJECT  (Ch.  8 

carry  out  their  ends,"'  or  their  object  be  not  to  impoverish  third 
persons,"  or  to  extort  money  from  employers,'*  or  to  encourage 
strikes  or  breaches  of  contract,"  or  to  restrict  the  freedom  of  mem- 
bers for  the  purpose  of  compelling-  employers  to  conform  to  their 
rules."  ®*  So  an  agreement  between  professional  men,  by  which 
a  schedule  of  fees  is  established,  is  not  illegal.®* 

Combinations  between  Employers 

In  England  a  contract  between  employers  for  the  purpose  of  pro- 
tecting their  interests  against  combinations  of  workmen,  by  which 
they  agree  to  regulate  wages  and  hours  of  work,  or  wholly  or  par- 
tially to  suspend  work  for  a  time,  as  the  majority  may  resolve,  has 
been  held  in  restraint  of  trade,  as  depriving  each  of  the  control  of 

6  8  Reg,  V.  Rowlands,  17  Adol.  &  E.  671;  Carew  v.  Rutherford,  106  Mass.  1, 
8  Am.  Rep.  287 ;  State  v.  Stewart,  59  Vt.  273,  9  Atl.  559,  59  Am.  Rep.  710 ; 
State  V.  Glidden,  55  Conn.  46,  8  Atl.  S90,  3  Am.  St.  Rep.  23 ;  Old  Dominion 
S.  S.  Co.  V.  McKenna  (C.  C.)  30  Fed,  48.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  116;  Cent.  Dig.  §§  542-552. 

6  8  People  V.  Fisher,  14  Wend.  (N.  Y.)  9,  28  Am.  Dec.. 501;  Rigby  v.  Connol, 
14  Ch.  Div.  482;  Hornby  v.  Close,  L.  R.  2  Q.  B.  153.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  116;   Cenf.  Dig.  §§  5^2-552. 

60  Carew  v,  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  116;  Cent.  Dig.  §§  542-552. 

61  Hornby  v.  Close,  L.  R.  2  Q.  B.  153;  Farrer  v.  Close,  L.  R.  4  Q.  B.  602; 
Old  Dominion  S.  S.  Co.  v.  McKenna  (C.  C.)  30  Fed.  48.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  S  116;   Cent.  Dig.  §§  542-552. 

62  A  provision  in  a  contract  between  stevedores  that  unless  the  merchants 
in  particular  cases  employ  one  of  the  contracting  parties  to  whom,  as  be- 
tween themselves,  the  business  is  assigned  by  the  contract,  none  of  them  will 
accept  the  employment,  is  bad.  Collins  v.  Locke,  4  App.  Cas.  674.  A  contract 
between  a  brewers'  association  and  a  labor  union,  providing  that  no  employe 
of  the  former  shall  work  more  than  four  weeks  without  becoming  a  member 
of  the  latter,  is  void.  Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E.  297,  37  L.  R. 
A.  802,  57  Am.  St.  Rep.  496.  A  liverymen's  association,  which  prohibits  any 
member  from  doing  business  with  any  person  who  does  not  patronize  its 
members  exclusively,  or  from  letting  a  hearse  to  a  person  for  a  funeral  where 
the  undertaker  patronizes  nonunion  members,  is  illegal.  Gatzow  v.  Buening, 
106  Wis.  1,  81  N.  W.  1003,  49  L.  R.  A.  475,  80  Am.  St.  Rep.  1.  By-laws  of  a 
builders'  association,  which  require  members  to  pay  to  the  association  6  per 
cent,  on  all  contracts  taken  by  them,  and  to  submit  all  bids  first  to  the  as- 
sociation, and  provide  that  the  lowest  bidder  shall  add  6  per  cent  to  his 
bid  before  it  is  submitted  to  the  owner,  are  void.  Milwaukee  Masons'  & 
Builders'  Ass'n  v.  Niezerowski,  95  Wis.  129,  70  N.  W.  166,  37  L.  R.  A.  127, 
60  Am.  St  Rep.  97.  To  same  effect  Bailey  v.  Association,  103  Tenn.  99,  52 
S.  W.  853,  46  L.  R.  A.  561.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  116;  Cent. 
Dig.  §§  542-552. 

esRohlf  V.  Kasemeier,  140  Iowa,  182,  118  N.  W.  276,  23  li.  R.  A.  (N.  S.) 
1284,  132  Am.  St  Rep.  261,  17  Ann.  Caa  750.  See  "Contracts,"  Deo.  Dig. 
(Key-No.)  §  116;  Cent.  Dig.  §§  542-552. 


§§    173-174)     AGREEMENTS   CONTRARY   TO   PUBLIC   POLICY  401 

his  own  business,  and  therefore  not  enforceable."*  In  Pennsylva- 
nia, on  the  other  hand,  it  has  been  held  that  where  employes  enter 
into  a  combination,  which  under  the  statutes  of  the  state  is  lawful, 
to  control  by  artificial  means  the  supply  of  labor,  preparatory  to  a 
demand  for  an  advance  in  wages,  a  combination  of  employers  to 
resist  such  artificial  advance  is  lawful,  since  it  is  not  made  to  lower 
the  price  of  labor  as  regulated  by  supply  and  demand.®"^  So  a  con- 
tract between  employers  by  which  they  agree  not  to  employ  any 
person  who  belongs  to  a  certain  labor  organization  or  to  any  or- 
ganization aflfiliating  therewith  has  been  declared  valid."  And  a 
contract  between  an  employer  and  a  labor  union,  by  which  the  em- 
ployer agrees  to  employ  for  a  certain  period  only  members  of  the 
union,  is  not  contrary  to  public  policy.'^ 


SAME— EXEMPTION   FROM   LIABILITY   FOR   NEGLI- 
GENCE 

173.  As  a  general  rule,  a  party  may  make  a  valid  contract  for  ex- 

emption from  liability  for  his  own  negligence  or  that  of  his 

servants. 

174.  EXCEPTIONS: 

(a)  A  stipulation,  in  a  contract  between  master  and  servant,  that 

the  master  shall  not  be  liable  for  injuries  to  the  servant 
caused  by  the  negligence  of  the  master,  or  by  the  negli- 
gence of  superior  servants  for  which  the  law  makes  the 
master  liable,  is  contrary  to  public  policy. 

(b)  The  same  is  true  of  a  stipulation  in  a  contract  with  a  com- 

mon carrier,  either  of  goods  or  passengers,  exempting  it 

•  «  Hilton  T.  Eckersley,  6  El.  &  Bl.  47,  68.  See  "Contracts,"  Deo.  Dig. 
{KeiJ-^'o.)  §  116;  Cent.  Dig.  §§  5>,2-552. 

6  5  Cote  V.  Murphy,  159  Pa.  420,  28  Atl.  190,  23  L.  R.  A.  135,  39  Am.  St.  Rep 
686.  "The  moment  the  legislature  relieves  one,"  said  the  court,  "and  b> 
far  the  larger  number,  of  the  citizens  of  the  commonwealth  from  the  common 
law  prohibitions  against  combinations  to  raise  the  price  of  labor,  down  went 
the  foundation  on  which  common-law  conspiracy  was  based  as  to  that  par- 
ticular subject"  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  116;  Cent.  Dig.  §§ 
6Ii2-o52. 

6  8  Goldfleld  Consol.  Mines  Co.  v.  Goldfield  Miners'  Union  No.  220   (C.  C.) 
159  Fed.  500.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  116;  Cent.  Dig.  §§  5Jf2 
652. 

6  7  Jacobs  V.  Cohen,  183  N.  T.  207,  76  N.  B.  5,  2  L.  R.  A.  (N.  S.)  292,  111 
Am.  St.  Rep.  730,  5  Ann.  Cas.  280  [reversing  99  App.  Dlv.  481,  90  N.  Y.  Supp 
8r.41 ;  Kissam  v.  United  States  Printing  Co.  of  Ohio,  199  N.  Y.  76,  92  N.  E. 
214  falfirming  judgments  128  App.  Div.  889,  112  N.  Y.  Supp.  1134,  1137].  .Vw 
"Contracts,"  Dec.  Dig.  (Key-No.)  i  118;  Cent.  Dig.  §§  51,2-552. 
Clabk  Cont.(3d  Ed.)— 26 


402  LEGALITY   OF  OBJECT  (Ch.  8 

from  liability  for  losses  or  injuries  caused  by  its  negli- 
gence. 
(c)  The  same  is  true,  in  some  jurisdictions,  of  a  stipulation  by  a 
telegraph  company  exempting  it  from  liability  for  error, 
delay,  or  nondelivery ;  but  as  to  this  there  is  a  direct  con- 
flict of  opinion. 

In  accordance  with  the  genieral  policy  of  the  law,  which  favors 
che  freedom  of  contract,  a  person  may,  except  in  certain  cases,  make 
a  valid  contract  for  exemption  from  liability  for  the  negligence  of 
himself  or  that  of  his  servants.^'  Illustrations  of  such  contracts  are 
fire  insurance  policies,  which  protect  the  insured  against  losses  by 
fire  occasioned  by  his  negligence,  policies  of  liability  insurance, 
which  protect  the  insured  against  liability  for  personal  injuries  caus- 
ed by  the  negligence  of  himself  or  his  servants,  and  contracts  by  a 
railroad  company  with  persons  allowed  by  it  to  build  on  its  right 
of  way  for  exemption  from  liability  for  injury  to  such  structures  by 
fire  due  to  the  negligent  operation  of  the  company's  locomotives.** 

A  party  may  not,  however,  by  contract  exempt  himself  from  lia- 
bility for  his  negligence  in  the  performance  of  certain  absolute  du- 
ties imposed  by  law.  Thus  a  master  owes  certain  duties  to  his 
servants,  and  a  common  carrier  to  passengers  and  shippers  of 
goods,  which  duties  are  imposed  by  law  in  the  interest  of  the  pub- 
lic, and  against  liability  for  the  breach  of  which  he  may  not  con- 
tract.''® 

According  to  the  better  opinion,  a  master  cannot,  by  stipulation 
in  the  contract  with  his  servant,  exempt  himself  from  liability  for 
injuries  to  the  servant  caused  by  his  negligence.  Such  a  stipulation 
is  void  as  being  contrary  to  public  policy.^^     It  has  also  been  held 

68  JAMES  QUIRK  MILLING  CO.  v.  MINNEAPOLIS  &  ST.  L.  R.  CO.,  98 
Minn.  22,  107  N.  W.  742,  116  Am.  St.  Rep.  336,  Throckmorton  Cas.  Contracts, 
286.     See  "Railroads,"  Dec.  Dig.  (Key-No.)  §  469;    Cent.  Diy.  §  1665. 

69  JAMES  QUIRK  MILLING  CO.  v.  MINNEAPOLIS  &  ST.  L.  R.  CO., 
supra.    See  "Railroads,"  Dec.  Dig.  (Key-No.)  §  469;  Cent.  Dig.  §  1665. 

TO  JAMES  QUIRK  MILLING  CO.  v.  MINNEAPOLIS  &  ST.  L.  R.  CO., 
supra.  See  "Carriers,"  Dec.  Dig.  (Key-No.)  §  WT ;  Cent.  Dig.  §§  6S7-648; 
"Master  and  Servant;'  Dec.  Dig.  (Key-No.)  §  100;   Cent.  Dig.  §§  166-170. 

71  Runt  V.  Herring,  2  Misc.  Rep.  105,  21  N.  Y.  Supp.  244,  and  cases  there 
cited;  Louisville  &  N.  R.  Co.  v.  Orr,  91  Ala.  548,  8  South.  360;  RICHMOND 
&  D.  R.  CO.  V.  JONES,  92  Ala.  218,  9  South.  276,  Throckmorton  Cas.  Contracts, 
337;  Roesner  v.  Hermann  (C.  C.)  8  Fed.  782.  See  Purdy  v.  Railroad  Co.,  125 
N.  Y.  209,  26  N.  E.  255,  21  Am.  St.  Rep.  736.  Where  an  employe  joins  a  relief 
association  to  which  he  contributes,  and  his  employer  guaranties  the  obliga- 
tions, etc.,  the  employe's  agreement  in  his  application  for  membership  that 
acceptance  of  beneflts  from  the  association  for  an  injury  shall  release  the  com- 
pany from  damages  is  not  void  as  against  public  policy,  since  he  has  the 
right  of  election  to  accept  benefits  or  sue.     Otis  v.  Pennsylvania  Co.  (C.  C.) 


§§  173-174)   AGREEMENTS  CONTRARY  TO  PUBLIC  POLICY 


403 


that,  since  the  liability  imposed  upon  a  railroad  company  by  law 
for  injuries  to  their  servants  caused  by  the  carelessness  of  those, 
who  are  superior  in  authority  and  control  over  them,  is  based  upon 
considerations  of  public  policy,  for  this  reason  a  railroad  company 
cannot  stipulate  with  its  employes,  at  the  time  and  as  a  part  of  their 
contract  of  employment,  that  such  liability  shall  not  attach  to  it. 
"Such  liability  is  not  created  for  the  protection  of  the  employe 
simply,  but  has  its  reason  and  foundation  in  a  public  necessity  and 
policy,  which  should  not  be  asked  to  yield  or  surrender  to  mere 
private  interests  and  agreements."  ""^ 

A  railroad  company,  shipowner,  or  other  common  carrier  cannot, 
by  stipulation  in  contracts  of  carriage,  exempt  itself  from  liability, 
or  limit  its  liability,  for  injury  to  passengers  or  goods  caused  by  its 
own  negligence  or  the  negligence  of  its  servants.  Such  a  stipula- 
tion is,  in  this  country  at  least,  regarded  as  contrary  to  public  pol- 
icy.''^ It  may,  however,  exempt  itself  from  losses  or  injuries  oc- 
curring from  other  causes  than  its  own  negligence,  as  from  acci- 
dent, and  for  which  it  would  be  liable  as  an  insurer/* 

71  Fed.  136 ;  Maine  v.  Railroad  Co.,  109  Iowa,  260,  70  N.  W.  630,  80  N.  W.  315 ; 
Pittsburg,  C,  C.  &  St.  L.  Ry.  Co.  v.  Cox,  55  Oliio,  497,  45  N.  E.  641,  35  L.  R. 
A.  507 ;  Eckman  v.  Railroad  Co.,  169  111.  312,  48  N.  E.  496,  38  L.  R.  A.  750 ; 
Pittsburg,  C,  C.  &  St.  L.  Ry.  Co.  v.  Moore,  152  Ind.  345,  53  N.  E.  290,  44  L. 
R.  A.  638;  Hamilton  v.  Railroad  Co.  (G.  C.)  118  Fed.  92;  Atlantic  Coast  Line 
R.  Co.  V.  Beazley,  54  Fla.  311,  45  South.  761  (collecting  and  discussing  cases). 
See  "Master  and  Servant,"  Dec.  Dig.  {Key-No.)  §  100;  Cent.  Dig.  §§  166-170. 

7  2  Lake  Shore  &  M.  S.  Ry.  Co.  t.  Spangler,  44  Ohio  St.  471,  8  N.  E.  467,  58 
Am.  Rep.  833;  Johnson's  Adm'x  v.  Railroad  Co.,  86  Va.  075,  11  S.  B.  829; 
Hissong  V.  Railroad  Co.,  91  Ala.  514,  8  South.  776 ;  JAMES  QUIRK  MILLING 
CO.  V.  MINNEAPOLIS  &  ST.  L.  R.  CO.,  98  Minn.  22,  107  N.  W.  742,  116  Am. 
St  Rep.  336,  Throckmorton  Cas.  Contracts,  286.  Contra,  Western  &  A.  R. 
Co.  V.  Bishop,  50  Ga.  465  (holding  such  a  contract  valid  so  far  as  It  does 
not  waive  any  criminal  neglect  of  the  company  or  its  principal  officers;  but 
this  case  expressly  declares  that  contracts  contravening  public  policy  will  not 
be  enforced).  See  "Master  and  Servant,"  Dec.  Dig.  {Key-No.)  §  100;  Cent. 
Dig.  §§  16G-110. 

73  New  York  Cent  R.  Co.  v.  Lockwood,  17  Wall.  357,  21  L.  Ed.  627;  Arm- 
strong V.  Express  Co.,  159  Pa.  640,  28  Atl.  448;  Abrams  v.  Railway  Co.,  87 
Wis.  485,  58  N.  W.  780,  41  Am.  St  Rep.  55;  Sehulze-Berge  v.  The  Guildhall 
(D.  C.)  58  Fed.  796;  Monroe  v.  The  Iowa  (D.  C.)  50  Fed.  561;  Johnson  v. 
Railway  Co.,  69  Miss.  191,  11  South.  104,  30  Am.  St  Rep.  534;  Louisville  & 
N.  R.  Co.  V.  Grant  99  Ala.  325,  13  South.  509;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ed- 
dins,  7  Tex.  Civ.  App.  116,  26  S.  W.  161 ;  Ix)uisville  &  N.  R.  Co.  v.  Dies,  91 
Tonn.  177,  18  S.  W.  2GG,  30  Am.  St  Rep.  871 ;  Union  Pac.  Ry.  Co.  v.  Rainey, 
19  Colo.  225,  34  Pac.  986;  The  Hugo  (D.  C.)  57  Fed.  403;  Atchison,  T.  &  S.  F. 
R.'Co.  V.  Lawler,  40  Neb.  356,  58  N.  W.  968;  St  Joseph  &  G.  I.  R.  Co.  v. 
Palmer,  38  Neb.  463,  56  N.  W.  957,  22  L.  R,  A.  335.  See  "Carriers,"  Dec. 
Dig.  (Key-No.)  §  1J,1 ;  Cent.  Dig.  §§  637,  C,.',2. 

T4  Indianapolis,  D.  &  W.  R.  Co.  v.  Forsythe,  4  Ind.  App.  326,  29  N.  E.  1138; 


404  LBGAXJTT  OF   OBJECT  (Ch.  8 

As  to  the  validity  of  stipulations  in  contracts  with  telegraph  com- 
panies for  the  transmission  of  messages,  there  is  a  direct  conflict. 
Many  cases  hold  that  a  stipulation  providing  that  the  liability  of  the 
company  for  any  mistake  or  delay  in  the  transmission  and  delivery 
of  a  message,  or  for  not  delivering  the  same,  shall  not  extend  be- 
yond the  sum  received  for  sending  it  unless  the  sender  orders  the 
message  to  be  repeated  by  sending  it  back  to  the  office  which  first 
received  it,  and  pays  half  the  regular  rate  additional,  is  a  reasonable 
precaution  to  be  taken  by  the  company,  and  not  against  public  pol- 
icy, except  in  so  far  as  it  would  exempt  the  company  from  liability 
for' willful  misconduct  or  gross  negligence.'^'  Another  class  of  cas- 
es holds  that  there  can  be  no  consideration  for  such  a  stipulation 
on  the  part  of  the  sender  of  the  message,  and,  furthermore,  that  it 
is  contrary  to  public  policy."     Still  another  class  of  cases,  while 

Davis  V.  Railroad  Co.,  66  Vt.  290,  29  Atl.  313,  44  Am.  St  Rep.  852;  Hart- 
ford Fire  Ins.  Co.  v.  Railroad  Co.,  175  U.  S.  91,  20  Sup.  Ot.  33,  44  L.  Ed. 
84.  It  may  limit  Its  liability  to  injuries  received  on  its  own  line,  Texas  & 
P.  Ry.  Co.  V.  Smith  (Tex.  dv.  App.)  24  S.  W.  565;  Galveston,  H.  &  S.  A.  R- 
Co.  V.  Short  (Tex.  Civ.  App.)  25  S.  W.  142;  McCann  v.  Eddy  (Mo.)  27  S.  W. 
541;  McEacheran  v.  Railroad  Co.,  101  Mich.  264,  59  N,  W.  612;  Coles  v. 
Railroad  Co.,  41  111.  App.  607 ;  Dunbar  v.  Railway  Co.,  36  S.  C.  110,  15  S.  E. 
357,  31  Am.  St.  Rep.  860;  but  not  when  it  is  a  partner  with  the  connecting 
line.  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wilbanks,  7  Tex.  Civ.  App.  4S9,  27  S.  W.  302. 
It  may  exempt  itself  from  liability  after  unloading,  where  it  provides  a  cov- 
ered warehouse  into  which  the  cargo  Is  discharged,  and  the  time  and  place 
of  discharge  are  easily  ascertainable  by  the  consignees.  Constable  v.  Steam- 
ship Co.,  154  U.  S.  51,  14  Sup.  Ct.  1062,  38  L.  Ed.  903.  Express  messenger, 
accompanying  express  car  in  pursuance  of  contract  between  railroad  cotn- 
pany  and  express  company,  held  not  a  passenger,  and  cannot  recover  from 
railroad  company  for  injuries  in  collision  where  contract  between  companies 
exempts  from  such  liability  and  his  own  contract  of  employment  assumes 
such  risk.  Baltimore  &  O.  S.  W.  R.  Co.  v.  Voight,  176  U.  S.  498,  20  Sup.  Ct 
385,  44  U  Ed.  560.  See  "Carriers;'  Dec.  Dig.  (Key-No.)  i  W;  Cent.  Dig.  §§ 
637,  642. 

T5  Riley  V.  Telegraph  Co.,  6  Misc.  Rep.  221,  26  N.  T.  Supp.  532;  Primrose 
v.  Telegraph  Co.,  154  U.  S.  1,  14  Sup.  Ct  1098,  38  L.  Ed.  883;  Grinnell  v. 
Telegraph  Co.,  113  Mass.  299,  18  Am.  Rep.  485;  Western  Union  Telegraph 
Co.  V.  Carew,  15  Mich.  525;  Camp  v.  Telegraph  Co.,  1  Mete.  (Ky.)  164,  71  Am. 
Dec.  461;  Breese  v.  Telegraph  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526;  Passmore 
V.  Telegraph  Co.,  78  Pa.  238;  Western  Union  Telegraph  Co.  v.  Blahchard,  68 
Ga.  299  (45  Am.  Rep.  486,  note,  collecting  cases)  ;  Colt  v.  Telegraph  Co.,  130 
Cal.  657,  63  Pac.  83,  53  L.  R.  A.  678,  80  Am.  St  Rep.  153.  -See  "Telegraphs 
and  Telepliones,"  Dec.  Dig.  (Key-No.)  §  54;  Cent.  Dig.  §§  39-47. 

7  6  Brown  v.  Telegraph  Co.,  Ill  N.  C.  187,  16  S.  E.  179,  17  L.  R.  A.  648,  32 
Am.  St  Rep.  793 ;  Tyler  v.  Telegraph  Co.,  60  111.  421,  14  Am.  Rep.  38 ;  West- 
em  Union  Telegraph  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279;  Wertz  v. 
Telegraph  Co.,  8  Utah,  499.  33  Pac.  138;  Western  Union  Telegraph  Co.  v. 
Linn,  87  Tex.  7,  26  S.  W.  490,  47  Am.  St  Rep.  58 ;  Western  Union  Telegraph 
Co.  V.  Cook,  61  Fed.  624,  9  C.  C.  A.  680;    Candee  v.  Telegraph  Co.,  34  Wis. 


I    175)  EFFECT   OF   ILLEGALITY  405 

Upholding  such  a  stipulation  in  part,  hold  that  it  cannot  exonerate 
the  company  from  liability  for  damages  caused  by  defective  instru- 
ments, or  a  want  of  skill  or  ordinary  care  on  the  part  of  its  oper- 
ators." 

EFFECT  OF  ILLEGALITY 

We  come  now  to  the  second  branch  of  the  subject  of  illegality  in 
contract — its  effect  upon  the  validity  of  a  contract.  The  effect  of 
illegality  upon  the  validity  of  contracts  in  which  it  appears  varies 
according  to  the  circumstances.  It  may  aflfect  the  whole,  or  only 
a  part,  of  a  contract,  and  the  legal  and  illegal  parts  may  or  may  not 
be  capable  of  separation.  The  direct  object  of  a  contract  may  be  the 
doing  of  an  illegal  act,  or  the  direct  object  may  be  innocent,  though 
the  contract  is  designed  to  further  an  illegal  purpose.  The  parties 
may  both  be  ignorant,  or  both  be  aware,  of  the  illegality  which  re- 
motely or  directly  affects  the  transaction ;  or  one  may  be  innocent 
of  the  objects  intended  by  the  other.  Securities  may  be  given  for 
money  due  upon,  or  money  advanced  for,  an  illegal  transaction,  and 
the  validity  of  such  securities  depends  upon  various  considerations. 
Finally,  though  the  contract  is  illegal,  certain  considerations  may 
require  that  some  relief  be  granted  to  one  of  the  parties,  notwith- 
standing his  fault.  This  is  a  very  complex  and  difficult  branch  of 
the  law,  and  on  some  of  the  questions  suggested  there  is  a  conflict 
of  opinion.  All  we  can  do  is  to  state  the  general  principles  which 
govern,  and  call  attention  to  those  points  on  which  there  is  a  con- 
flict^* 

SAME— AGREEMENTS  PARTLY  ILLEGAL 

175.  Where  an  agreement  is  illegal  in  part  only,  the. part  which  is 
good  may  be  enforced,  provided  it  can  be  separated  from 
the  part  which  is  bad,  but  not  otherwise.  In  detail : 
(a)  An  indivisible  promise  to  do  several  acts,  some  of  which  are 
illegal,  or  a  single  promise  to  do  a  legal  act,  based  on  sev- 
eral considerations,  one  of  which  is  illegal,  is  wholly  void. 

477,  17  Am.  Rep.  452 ;  Bartlett  v.  Same,  62  Me.  218.  16  Am.  Rep.  437 ;  West- 
em  Union  Telegraph  Co.  v.  Chamblee,  122  Ala.  428.  25  South.  232.  82  Am. 
St.  Rep.  89.  See  "Telegraphs  and  Telephones,"  Dec.  Dig.  {Key-'So.)  §  54; 
Cent.  Dig.  §§  39-^7. 

11  Sweat! and  v.  Telegraph  Co.,  27  Iowa,  433,  1  Am.  Rep.  28.5.  See  "Tele- 
graphs and  Telephones:'  Dec.  Dig.  {Key-No.)  §  54;  Cent.  Dig.  §§  SO-Jfl. 

»•  Anson,  Gout.  (4th  Ed.)  189. 


406  LEGALITY   OF  OBJECT  (Ch.  8- 

(b)  But  where  distinct  promises,  some  of  which  are  good,  are 
based  on  a  good  consideration,  or  where  there  are  distinct 
promises  based  on  several  distinct  considerations,  some  of 
which  are  good,  the  good  promises,  or  promises  based  on 
good  considerations,  may  be  enforced. 

An  agreement  may  consist  of  a  single  promise  based  on  a  single 
consideration.  If  either  the  promise  or  the  consideration  is  illegal, 
there  is  no  difficulty  in  pronouncing  the  agreement  void.'"  On  the 
other  hand,  there  may  be  several  promises  or  considerations,  some 
of  which  only  are  illegal,  and  in  these  cases  the  agreement  may  or 
may  not  be  wholly  void,  according  to  the  circumstances.  Whether 
it  is  wholly  void  or  not  will  depend  upon  whether  it  is  one  entire 
and  indivisible  agreement,  or  whether  it  is  divisible,  so  that  the 
good  may  be  separated  from  the  bad.  "If  any  part  q^  an  agreement 
is  valid,  it  will  avail  pro  tanto,  though  another  part  of  it  may  be" 
prohibited  by  statute ;  provided  the  statute  does  not,  either  ex- 
pressly or  by  necessary  implication,  render  the  whole  void ;  and 
provided,  furthermore,  that  the  sound  part  can  be  separated  from 
the  unsound,  and  be  enforced  without  injustice  to  the  defendant."  ***■ 
"If  the  part  which  is  good  depends  upon  that  which  is  bad,  the 
whole  is  void ;  and  so  I  take  the  rule  to  be  if  any  part  of  the  con- 
sideration be  malum  in  se,  or  the  good  and  void  consideration  be 
so  mixed,  or  the  contract  so  entire,  that  there  can  be  no  apportion- 
ment." " 

At  one  time  a  distinction  was  made  in  the  application  of  this 
principle  between  illegality  by  reason  of  a  statute  and  illegality  at 
common  law.  The  judges,  fearing  that  statutes  might  be  eluded, 
laid  it  down  that  "the  statute  is  like  a  tyrant — where  he  comes  he 
makes  all  void ;  but  the  common  law  is  like  a  nursing  father — 
makes  only  void  that  part  where  the  fault  is,  and  preserves  the 
rest."    Such  a  distinction,  however,  is  no  longer  recognized. ^^ 

19  Dennehy  v.  McNulta,  86  Fed.  825,  30  C.  C.  A.  422,  41  L.  R,  A.  609.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  136;  Cent.  Dig.  §§  6S1-100. 

8  0  Rand  V.  Mather,  11  Cush.  (Mass.)  1,  59  Am.  Dec.  131  [overruling  Loomis 
V.  Newhall,  15  Pick.  (Mass.)  159];  Bixby  v.  Moor,  51  N.  H.  402,  See  ''Con- 
tracts;' Dec.  Dig.  {K^y-No.)  §  131;  Cent.  Dig.  §§  701-712. 

81  2  Kent,  Comm.  467;  U.  S.  v.  Bradley,  10  Pet.  343,  9  L.  Ed.  448;  HANDY 
V.  ST.  PAUL  GLOBE  PUB.  CO.,  41  Minn.  ISS,  42  N.  W.  872,  4  L.  R.  A. 
466,  16  Am.  St.  Rep.  695,  Throckmorton  Gas.  Goutracts,  227 ;  Santa  Clara 
Valley  Mill  &  Lumber  Co.  v.  Hayes,  76  Gal.  3S7,  18  Pac.  391,  9  Am.  St  Rep. 
21L     See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  137;  Cent.  Dig.  §§  701-712. 

82  Anson,  Cont  (4th  Ed.)  1S9 ;  Pickering  v.  Railway  Co.,  L.  R.  3  C.  P.  250; 
State  V.  Findley,  10  Ohio,  51;  Rand  v.  Mather,  11  Cush.  (Mass.)  1,  59  Am. 
Dec.  131 ;  U.  S.  v.  Bradley,  10  Pet.  343,  9  L.  Ed.  448 ;  Hynds  v.  Hays,  25  Ind> 
31.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  137;  Cent.  Dig.  §§  701-712. 


§    175)  EFFECT   OF   ILLEGALITY  407 

The  above  are  the  general  rules,  but  it  will  aid  us  in  understand- 
ing the  doctrine  if  we  state  the  law  more  in  detail. 

Same — Indivisible  Agreements 

If  a  promise  to  do  several  acts  is  indivisible,  and  is  in  part  illegal, 
if  cannot  be  enforced  as  to  that  part  which  is  legal,  but  the  whole 
agreement  is  void.^'  This  rule  is  too  clear  to  need  explanation. 
The  only  difficulty  is  in  determining  whether  the  promise  is  divisi- 
ble;   but  this  is  a  question  of  interpretation  of  contracts. 

Where  the  agreement  consists  of  one  promise  made  upon  several 
considerations,  some  of  which  are  bad  and  some  good,  here,  also, 
the  promise  is  wholly  void,  for  it  is  impossible  to  say  whether  the 
legal  or  the  illegal  portion  of  the  consideration  most  affected  the 
mind  of  the  promisor,  and  induced  his  promise.**     An  illustration 

88  Crawford  v.  Morrell,  8  Johns.  (N.  T.)  253 ;  Thayer  v.  Rock,  13  Wend. 
(N.  Y.)  53 ;  Leavitt  v.  Palmer,  3  N.  Y.  19,  51  Am.  Dec.  333 ;  McMullen  v.  Hoff- 
man, 174  U.  S.  G39,  19  Sup.  Ct.  839,  43  L.  Ed.  1117;  Foote  v.  Nickerson,  70 
N.  H.  496,  48  Atl.  lOSS,  54  L,  R.  A.  554;  Union  Cent.  Life  Ins.  Co.  v.  Berlin, 
90  Fed.  779,  33  C.  C.  A.  274;  Chicago,  I.  &  L.  Ry.  Co.  v.  Southern  Indiana 
Ry.  Co.  (Ind.  App.)  70  N.  E.  843,  846  [quot.  proposition  of  text  from  Clark  on 
Contracts  (1st  Ed.)  472].  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  137;  Cent. 
Dig.  §§  101-112. 

8  4  Chicago,  I,  &  L.  Ry.  Co.  v.  Southern  Indiana  Ry.  Co.  (Ind.  App.)  70 
N.  E.  843,  846  [quot.  proposition  of  text  from  Clark  on  Contracts  (1st  ed.) 
473];  State  v.  Wilson,  73  Kan.  334,  SO  Pac.  639,  84  Pac.  737,  117  Am.  St. 
Rep.  479  [cit.  Clark  on  Contracts  (1st  Ed.)  471] ;  Featherston  v.  Hutchinson, 
Cro.  Eliz.  199;  TRIST  v.  CHILD,  21  Wall.  441,  22  L.  Ed.  623,  Throckmorton 
Cas.  Contracts,  241 ;  State  v.  Board,  35  Ohio  St.,  at  page  519 ;  Bixby  v. 
Moor,  51  N.  H.  402;  Wisner  v.  Bardwell,  38  Mich.  278;  Saratoga  County 
Bank  v.  King,  44  N.  Y.  87;  Bredin's  Appeal,  92  Pa.  241,  37  Am.  Rep.  677; 
Sumner  x.  Summers,  54  Mo.  340;  Perkins  v.  Cummings,  2  Gray  (Mass.) 
258;  BISHOP  v.  PALMER,  146  Mass.  409.  16  N.  E.  299,  4  Am.  St.  Rep.  339, 
Throckmorton  Cas.  Contracts,  290;  McQuade  v.  Rosecrans,  36  Ohio  St.  442; 
Tobey  v.  Robinson,  99  111,  222;  James  v.  Jellison,  94  Ind.  292,  48  Am.  Rep. 
151;  Ricketts  v.  Harvey,  106  Ind.  564,  6  N.  E.  325;  Haynes  v.  Rudd,  102 
N.  Y.  372,  7  N.  E.  287,  .55  Am.  Rep.  815 ;  Pettit's  Adm'r  v.  Pettit's  Distributees, 
32  Ala.  288;  Woodruff  v.  Hinman,  11  Vt  592,  34  Am.  Dec.  712;  Chandler 
V.  Johnson,  39  Ga.  85 ;  Gage  v.  Fisher,  5  N.  D.  297,  65  N.  W.  809,  31  L.  R.  A. 
557;  Edwards  Co.  v.  Jennings,  89  Tex.  618,  35  S.  W.  1053;  Geer  v.  Frank,  179 
111.  570,  53  N.  E.  905,  45  L.  R.  A.  110.  But  see  Pierce  v.  Pierce,  17  Ind.  App. 
107,  46  N.  E.  480;  Fishell  v.  Gray,  60  N.  J.  Law,  5,  37  Atl.  606;  Rosen- 
baum  V.  Credit  System  Co.,  65  N.  J.  Law,  255,  48  Atl.  237,  53  L.  R.  A.  449 ; 
King  V.  King,  G3  Ohio  St.  303,  59  N.  E.  Ill,  52  L.  R.  A.  157,  81  Am.  St.  Rep. 
635.  Thus,  in  Kansas,  it  is  held  that  a  chattel  mortgage  is  entirely  void  if 
illegal  as  to  one  of  the  articles  mortgaged  (intoxicating  liquors).  Gerlach 
V.  Skinner,  34  Kan.  86,  8  Pac.  257,  55  Am.  Rep.  240;  Flersheim  v.  Cary,  39 
Kan.  178,  17  Pac.  825.  No  recovery,  for  instance,  can  be  had  on  the  quantum 
meruit  for  services  rendered  in  the  grocery  part  of  the  business  under  a  con- 
tract to  work  for  agreed  wages  as  bartender  and  clerk  for  a  dealer  in 
groceries  and  liquors,  the  sale  of  the  latter  being  prohibited.     Sullivan  v. 


408  LEGALITY   OF  OBJECT  (Ch.  8 

of  this  rule  is  in  the  case  of  sales  of  goods,  some  of  which  it  is  il- 
legal to  sell.  Where  each  article  is  sold  for  a  separate  price,  the 
price  of  those  articles  which  it  was  lawful  to  sell  may  be  recover- 
ed.*" If,  however,  a  note  is  given  for  the  price  of  all  the  articles, 
there  can  be  no  recovery  at  all  on  it,  for  it  is  based  in  part  on  an  il- 
legal consideration.*' 

The  consideration,  to  bring  a  case  within  this  principle,  must  be 
illegal  and  not  merely  void.  If  part  of  the  consideration  is  merely 
void,  and  there  is  still  a  valid  consideration  left,  it  will  support  the 
promise,  for,  as  we  have  seen,  the  law  does  not  undertake  to  de- 
termine whether  the  consideration  is  adequate.  It  is  only  where 
part  of  the  consideration  is  illegal  that  it  taints  the  entire  agree- 
ment.*'' 

Same — Divisible  Agreements 

Where  an  agreement  consists  of  several  promises  based  upon- 
several  considerations,  the  fact  that  one  or  more  of  the  consid- 
erations is  illegal  will  not  avoid  all  the  promises,  if  those  which 
are  based  upon  legal  considerations  are  severable  from  the  others.** 
Thus,  in  the  case  of  the  sale  of  various  articles,  some  of  which 
it  is  illegal  to  sell,  if  each  article  is  sold  for  a  separate  price,  so 
that  the  consideration  is  apportionable,  the  price  of  those  which 
it  was  lawful  to  sell  may  be  recovered.** 

Horgan,  17  R.  I.  109,  20  Atl.  232,  9  L.  R.  A.  110.  A  note.  In  consideration 
of  both  past  and  future  cohabitation,  is  void  in  toto.  Massey  v.  Wallace,  32 
S.  C.  149,  10  S.  E.  937.  8ee  "Contracts;'  Dec.  Dig.  (Eey-Xo.)  {  137;  Cent. 
Dig.  §§  101-112. 

8  5  See  cases  cited  infra,  note  89. 

86  Widoe  V.  Webb,  20  Ohio  St.  431,  5  Am.  Rep.  664;  Deering  v.  Chap- 
man, 22  Me.  488,  39  Am.  Dec.  592 ;  Kidder  v.  Blake,  45  N.  H.  530 ;  Allen  v. 
Pearce,  &±  Ga.  606,  10  S.  E.  1015;  Braitch  v.  Guelick,  37  Iowa,  212;  Gotten 
V.  McKenzie,  57  Miss.  418;  Oakes  v.  Merrifleld,  93  Me.  297,  45  Atl.  31.  But 
see  Shaw  v.  Carpenter,  54  Vt.  155,  41  Am.  Rep.  837 ;  Wilcox  v.  Daniels,  15  R. 
I.  261,  3  Atl.  204.  See  "Contracts;'  Dec.  Dig.  {Key-No.)  §  137;  Cent.  Dig. 
§§  101-712. 

«7  Cobb  V,  Cowdery,  40  Vt.  25,  94  Am.  Dec.  370;  Widoe  v.  Webb,  20  Ohio 
St  431,  5  Am.  Rep.  664;  ante,  p.  140.  See,  also,  Rosenbaum  v.  Credit  Sys- 
tem Co.,  65  N.  J.  Law,  255,  48  Atl.  237,  53  L.  R.  A.  449;  King  v.  King,  63 
Ohio  St.  363,  59  N.  E.  Ill,  52  L.  R.  A.  157,  81  Am.  St.  Rep.  635.  See  "Con- 
tracts." Dec.  Dig.  (Key-No.)  §  131;    Cent.  Dig.  §§  701-712. 

88  Robinson  v.  Green,  3  Mete.  (Mass.)  159.  See  "Contracts;'  Dec.  Dig. 
(Ecy-Xo.)  §  1S7;    Cent.  Dig.  §§  101-112. 

•  BCarleton  v.  Woods,  28  N.  H.  290;  Shaw  v.  Carpenter,  54  Vt.  155,  41 
Am.  Rep.  837;  Walker  v.  Lovell,  28  N.  H.  138,  61  Am.  Dec.  605;  Boyd  v. 
Eaton,  44  Me.  51,  69  Am.  Dec.  83;  Chase's  Ex'rs  v.  Burkholder,  18  Pa.  48. 
If  a  sale  of  a  number  of  articles  is  for  a  gross  price,  the  contract  is  in- 
divisible, and,  if  a  sale  of  some  is  prohibited,  none  of  the  price  can  be  re- 
covered.    Ladd  V.  Dillingham,  34  Me.  316.     And  see  Holt  v.  O'Brien,  15  Gray- 


V 


I    175)  BFFECT   OF   ILLEGALITY  409 

Again,  if  there  are  several  promises,  made  for  a  lawful  con- 
sideration, son.e  of  which  are  legal  and  some  illegal,  the  legal 
promises  may  be  enforced. ®°  At  an  early  day  it  was  declared 
"that  if  some  of  the  covenants  of  an  indenture  or  the  conditions 
indorsed  upon  a  bond  are  against  law,  and  some  are  good  and 
lawful;  that  in  this  case  the  covenants  or  Conditions  which  are 
against  law  are  void  ab  initio,  and  the  others  stand  good."  "^ 
In  other  words,  a  lawful  promise,  made  upon  a  lawful  consid- 
eration, is  not  invalid  merely  because  an  unlawful  promise  was 
made  at  the  same  time  and  for  the  Same  consideration. ^^  This 
principle  is  frequently  applied  to  contracts  in  restraint  of  trade.'*^ 
An  agreement,  for  instance,  not  to  engage  in  business  at  a  certain 
place,  or  any  other  place,  though  void  as  to  the  general  restric- 
tion, may  be  enforced  as  to  the  partial  restriction,  provided  the 
restriction  is  so  worded  as  to  be  divisible.®* 

(Mass.)   311.     See   ''Contracts,"    Dec.    Big.    (Key-No.)    §    1S7;    Cent.   Dig.    §§ 
701-712. 

»o  Bank  of  Australia  v.  Breillat,  6  Moore,  P.  C  152,  201;  U.  S.  v.  Bradley, 
10  Pet  343,  9  L.  Ed.  448;  State  v.  Board,  35  Ohio  St.  519;  State  v.  Findley, 
10  Ohio,  51 ;  Union  Locomotive  &  Express  Co.  v.  Piailway  Co.,  35  N.  J.  Law, 
240 ;  Stewart  v.  Railway  Co.,  38  N.  .7.  Law,  at  page  520 ;  Presbiiry  v.  Fisher. 
18  Mo.  50 ;  Gelpcke  v.  City  of  Dubuque,  1  Wall.  175,  17  L.  Ed.  520 ;  Pennsyl- 
vania Co.  V.  Wentz,  37  Ohio  St.  333;  Ware  v.  Curry,  67  Ala.  274;  U.  S.  v. 
Hodgson,  10  Wall.  395,  19  L.  Ed.  937 ;  U.  S.  v.  Mora,  97  U.  S.  413,  24  L.  Ed. 
1013;  Piper  v.  Boston  &  M.  R.  R.,  75  N.  H.  435,  75  Atl.  1041;  Osgood  v. 
Central  Vermont  R.  Co.,  77  Vt.  334,  60  Atl.  137,  70  L.  R.  A.  930;  Minnesota 
Sandstone  Co.  v.  Clark,  35  Wash.  466,  77  Pac.  803.  Contra,  Lindsay  v.  Smith. 
78  N.  C.  3^8,  24  Am.  Rep.  463.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  137; 
Cent.  Dig.  §§  701-712. 

91  Pigot's  Case,  11  Co.  Rep.  27b.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
137;  Cent.  Dig.  §§  701-712. 

92  Pollock,  Cont.  (3d  Ed.)  337.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  1S7; 
Cent.  Dig.  §§  701-712. 

93  BISHOP  V.  PALMER,  146  Mass.  469,  16  N.  E.  299,  4  Am.  St.  Rep.  339. 
Throckmorton  Cas.  Contracts,  290.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
137;    Cent.  Dig.  §§  701-712. 

9*  Peltz  V.  Eichele.  62  Mo.  171;  Dean  v.  Emerson,  102  Mass.  480;  Mallon 
V.  May,  11  Mees.  &  W.  653 ;  Hubbard  v.  Miller,  27  Mich.  15,  15  Am.  Rep.  153 ; 
Thomas  v.  Miles'  Adm'r,  3  Ohio  St.  275;  Davies  v.  Lowen,  64  Law  T.  655; 
Haynes  v.  Dorman,  [1899]  2  Ch.  13 ;  Smith's  Appeal,  113  Pa.  579,  6  Atl.  251 ; 
Rosenbaum  v.  Credit  System  Co.,  65  N.  J.  Law,  255,  48  Atl.  237.  53  L.  R.  A. 
449;  Security  Life  &  Annuity  Co.  v.  Costner,  149  N.  C.  293,  03  S.  B.  304. 
Contra,  More  v.  Bonnet,  40  Cal.  251,  6  Am.  Rep.  021.  A  contract  by  whicl) 
one  formerly  dealing  in  oil  in  the  city  of  H.  agreed  not  to  prosecute  such 
business  within  the  state,  the  city  of  L  excepted,  for  five  years,  is  not 
divisible,  and.  being  void  as  to  the  restriction  within  the  state,  is  void  as 
to  the  restriction  in  the  city  of  H.  Consumers'  Oil  Co.  r.  Nunnomaker,  142 
Jnd.  .^.GO,  41  N.  E.  1018,  51  Am.  St.  Rep.  193.  In  New  Jersey,  a  contract  by 
which  a  party  agreed  not  to  engage  in  business  within  500  miles  of  Jersey 


410  LEGALITY   OF   OBJECT  (Ch.  8 

Illustrations  of  this  rule  are  also  found  in  cases  where  a  corpo- 
ration has  entered  into  an  agreement,  some  parts  of  which  are 
ultra  vires,  and  so,  in  a  sense,  unlawful.  It  is  held  in  such  cases 
that,  "where  you  cannot  sever  the  illegal  from  the  legal  part, 
*  *  *  the  contract  is  altogether  void ;  but  where  you  can 
sever  them,  whether  the  illegality  be  created  by  statute  or  by  the 
common  law,  you  may  reject  the  bad  part  and  retain  the  good."  ^'^ 
These  cases  serve,  as  an  illustration,  but  it  must  be  remembered 
that  agreements  of  this  nature  are  invalidated  not  so  much  by  the 
illegality  of  their  objects  as  by  the  incapacity  of  the  corporation 
to  bind  itself." 


SAME— OBJECT  UNLAWFUL  BUT  INTENTION 
INNOCENT 

176.  Where   the   direct  object  is   illegal,   the   agreement  is  void, 

though  the  parties  did  not  know  of  the  illegality,  since 
ignorance  of  law  is  no  excuse. 

177.  EXCEPTIONS— This  rule  does  not  apply 

(a)  Where  the  agreement  can  be,  and  is,  legally  performed  in 

a  way  not  originally  contemplated,  if  there  was  no  inten- 
tion to  break  the  law. 

(b)  Where  a  party   performs  his  part  in  ignorance   of  a  fact 

which  renders  performance  illegal,  and  which  he  is  not 
bound  to  know. 

Where  the  direct  object  of  the  parties  is  to  do  an  illegal  act, 
the  agreement  is  void.  In  such  a  case  it  is  immaterial  that  they 
did  not  know  their  object  was  illegal,  for  ignorance  of  law  is  no 
excuse.®^  A  contract,  for  instance,  in  violation  of  a  statute,  can- 
not be  sustained  on  the  ground  that  the  parties  did  not  know 
of  the  existence  of  the  statute. 

City  has  been  held  divisible  and  enforceable  as  to  the  city,  even  if  unen- 
forceable as  to  the  outside  territory,  Fleckenstein  Bros.  Co.  v.  Fleckenstein, 
76  N.  J.  613,  71  Atl.  265,  24  L.  R.  A.  (N.  S.)  913.  See  "Contracts,"  Dec.  Dig. 
{Key-No.)  §  137;   Cent.  Dig.  §§  101-112. 

8B  Pickering  v.  Railway,  L.  R.  3  C.  P.  250;  State  v.  Board,  35  Ohio  St 
519.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  131;   Cent.  Dig.  §§  101-112. 

»8  Ashburj-  Carriage  Co.  v.  Riche,  Li.  R.  7  H.  L.  653.  See  Anson,  Cont. 
(8th  Ed.)  207.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  ISl;  Cent.  Dig.  §§  101- 
112. 

97  Favor  v.  Philbrick,  7  N.  H.  326;  Rosenbaum  v.  Credit  System  Co.,  64 
N.  J.  Law,  34,  44  Atl.  966.  See  "Contracts,"  Deo.  Dig.  (Key-No.)  §§  102,  131; 
Cent.  Dig.  §§  ^62-461. 


§§    176-177)  EFFECT  OF  ILLEGALITT  411 

Ignorance  of  illegality,  however,  may  become  important  if  the 
contract  admits  of  being  performed,  and  is  in  fact  performed,  in 
a  legal  manner,  though  a  detail  in  the  performance  as  originally 
contemplated  by  the  parties  would,  unknown  to  them,  have  direct- 
ly resulted  in  a  breach  of  the  law.  In  a  leading  case  on  this 
point  the  defendant  had  chartered  the  plaintiff's  ship  to  take  a 
cargo  of  hay  from  a  port  in  France  to  London,  the  cargo  to  be 
taken  from  the  ship  alongside  and  landed  at  a  certain  wharf.  Un- 
known to  the  parties  an  order  in  council  had  forbidden  the  land- 
ing of  French  hay.  The  defendant  on  learning  this,  instead  of 
landing  the  cargo,  took  it  from  alongside  the  ship  in  the  Thames 
into  another  ship,  and  exported  it.  In  an  action  by  the  plaintiff 
for  delay  of  his  vessel  the  defendant  set  up  the  unlawful  inten- 
tion as  avoiding  the  contract,  but  without  success.  "We  quite 
agree,"  it  was  said  by  the  court,  "that  where  a  contract  is  to  do 
a  thing  which  cannot  be  performed  without  a  violation  of  the 
law,  it  is  void,  whether  the  parties  knew  the  law  or  not.  But 
we  think  that,  in  order  to  avoid  a  contract  which  can  be  legally 
performed,  on  the  ground  that  there  was  an  intention  to  per- 
form it  in  an  illegal  manner,  it  is  necessary  to  show  that  there 
was  the  wicked  intention  to  break  the  law;  and,  if  this  be  so, 
the  knowledge  of  what  the  law  is  becomes  of  great  importance."  "'^ 

Mistake  of  Fact 

Though  mistake  of  law  does  not  excuse,  it  is  otherwise  in  case 
of  mistake  of  fact.«»  A  father,  for  instance,  may  recover  for 
services  performed  by  his  minor  son,  in  unlawfully  selling  intox- 
icating liquors  if  he  did  not  know  the  character  of  the  services 
while  his  son  was  performing  them.  In  reference  to  the  defense 
of  illegality  in  such  a  case  it  was  said:  "This  defense  is  founded 
on  a  well-settled  rule  of  law,  that  the  law  w.ill  not  lend  its  aid 
to  carry  into  effect  any  agreement  made  for  the  purpose  of  accom- 
plishing things  expressly  prohibited  by  law.  ♦  *  *  The  only 
question  is  whether  it  applies  to  this  case.  If  the  plaintiff  did 
not  place  his  son  in  the  service  of  the  defendant  for  the  purpose 
of  selling  liquor  illegally,  more  especially  if  he  did  not  consent 
to  it  or  know  of  it,  then  he  is  chargeable  with  no  violation  of 
law;  and  being,  by  the  general  rule  of  law,  entitled  to  compen- 
sation for  the  services  of  his  son,  the  defense  is  not  maintained."  ^ 

98  Waugh  V.  Morris,  L.  R.  8  Q.  B.  202.  See  Fox  v.  Rogers,  171  Mass.  546, 
50  N.  E.  1041.  See  "Contracts,"  Dec.  Dig.  (Key-Ko.)  S§  102,  105;  Cent.  Dig. 
§§  },G2-.',C>1. 

8  9  Clark,  Cr.  T^w  (2d  Ed.)  82. 

1  Emory  v.  Kempton,  2  Gray  (Mass.)  257.  If,  however,  an  agent  sells 
liquor,  for  instance,  knowing  it  Is  to  be  retailed  in  violation  of  law,  bis  prln- 


412  LEGALITY   OF  OBJECT  (Ch.  8 

So,  also,  it  has  been  held  that  an  actor  may  maintain  an  action 
for  his  services  in  an  unlicensed  theatrical  exhibition,  unless  it 
appears  that  he  knew  that  his  employer  had  no  license.  As  said 
in  such  a  case:  "It  is  ignorance  of  a  fact,  and  not  of  the  law, 
that  saves  the  plaintiff's  case.  He  undoubtedly  knew,  or  was 
bound  to  know,  that  unlicensed  theatrical  exhibitions  were  un- 
lawful ;  but  he  was  not  bound  to  know  that  the  defendants  had 
no  license,  and  were  doing  unlawful  acts."  * 


SAME— OBJECT  INNOCENT  BUT  INTENTION 
UNLAWFUL 

178.  Where  the  direct  object  of  an  agreement  is  innocent  in  itself. 

but  the  intention  of  both  parties  is  unlawful,  the  agree- 
ment is  void. 

179.  Where  the  direct  object  of  the  agreement  is  innocent,  but  the 

intention  of  one  of  the  parties  is  unlawful,  as  where  goods 
are  bought  or  money  borrowed  to  be  used  for  an  unlawful 
purpose,  the  fact  that  the  other  party  knows  of  such  pur- 
pose does  not  render  the  agreement  illegal,  unless 

(a)  He  shares  in  the  unlawful  intention. 

(b)  Or  does  some  act  in  aid  or  furtherance  of  the  other's  unlaw- 

ful design. 

(c)  Or  where  the  intention  is  to  commit  a  crime  which  is  not 

merely  malum  prohibitum  or  of  inferior  criminality. 

180.  If  the  direct  object  of  the  agreement  is  innocent,  and  there 

is  an  unlawful  intention  on  one  side  only,  of  which  the 

cipal  Is  charged  with  such  knowledge.  Fishel  v.  Bennett,  56  Conn.  40,  12 
Atl.  102.  See  "Intoxicating  Liquors,"  Dec.  Dig.  {Eey-^o.)  §  S29 ;  Cent. 
Dig.  §§  Jtlli-m. 

2  Roys  V.  Johnson,  7  Gray  (Mass.)  162  (of.  Stewart  v.  Thayer,  168  Mass. 
519,  47  N.  E.  420,  60  Am.  St  Rep.  407).  And  see  Bloxsome  v.  Williams, 
3  Bam.  &  C.  232 ;  Miller  v.  Hirschberg  (Or.)  37  Pac.  85.  As  illustrating  this 
principle  may  also  be  mentioned  bonds  given  to  indemnify  an  officer  or  pri- 
vate person  assisting  him  against  liability  for  seizing  goods  under  attach- 
ment, or  for  arresting  a  person.  If  the  officer  knows  the  seizure  or  arrest 
to  be  unlawful,  the  bond  is  illegal ;  but  it  is  otherwise  if  he  acts  in  good  faith, 
and  in  ignorance  of  the  illegality,  as  where  it  is  in  dispute  whether  property 
is  subject  to  levy.  Stone  v.  Hooker,  9  Cow.  (N.  Y.)  154;  Marsh  v.  Gold,  2 
Pick.  (Mass.)  255;  Ives  v.  Jones,  25  N.  C.  538,  40  Am.  Dee.  421;  Anderson 
V.  Fams,  7  Blackf.  (Ind.)  343;  Avery  v.  Halsey,  14  Pick.  (Mass.)  174; 
Davis  v.  Tibbats,  7  J.  J.  Marsh.  (Ky.)  264;  McCartney  v.  Shepard,  21  Mo. 
573,  64  Am.  Dec.  250;  Whitney  v.  Gammon,  103  Iowa,  303,  72  N.  W.  551. 
See  "Contracts,"  Dec.  Dig.   (Key-'No.)  §  102;   Cent.  Dig.  §§  J,62-467. 


§§    178-180)  EFFECT   OF   ILLEGALITY  413 

Other  party  is  ignorant,  the  latter  is  entitled  to  full  bene- 
fits under  the  agreement,  or,  while  the  agreement  is  still 
executory,  he  may  avoid  it. 

The  English  Rule 

In  England  it  is  held  that,  where  the  direct  object  of  a  contract 
is  innocent  in  itself,  but  one  of  the  parties  has  in  contemplation  an 
unlawful  purpose,  the  contract  is  void  if  both  parties  knew  of  the 
illegal  purpose  at  the  time  the  contract  was  entered  into;  that, 
though  there  is  nothing  illegal  in  a  loan  of  money  or  a  sale  of 
goods,  still,  if  it  is  known  by  the  lender  or  seller  that  the  other 
party  intends  to  use  the  money  or  the  goods  for  an  illegal  pur- 
pose, neither  the  money  lent,  nor  the  goods  supplied,  can  form 
the  subject  of  an  action;  that  the  whole  transaction  is  void.  Thus, 
where  the  plaintiff  supplied  a  brougham  to  a  prostitute,  it  was  held 
not  necessary  to  show  that  he  expected  to  be  paid  from  the 
proceeds  of  her  calling;  that  his  knowledge  of  her  calling  justi- 
fied the  jury  in  inferring  knowledge  of  her  purpose;  and  that  this 
knowledge  rendered  the  contract  void.  "My  difficulty  was,"  said 
Bramwell,  B.,  "whether,  though  the  defendant  hired  the  brougham 
for  that  purpose,  it  could  be  said  that  the  plaintiffs  let  it  for  the 
same  purpose.  In  one  sense  it  was  not  for  the  same  purpose. 
If  a  man  were  to  ask  for  dueling  pistols,  and  to  say,  'I  think  I 
shall  fight  a  duel  tomorrow,'  might  not  the  seller  answer,  'I  do 
not  want  to  know  your  purpose.  I  have  nothing  to  do  with 
it,  that  is  your  business.  Mine  is  to  sell  the  pistols,  and  I  look 
only  to  the  profit  of  the  trade.'  No  doubt  the  act  would  be  immoral, 
but  I  have  felt  a  doubt  whether  it  would  be  illegal ;  and  I  should 
feel  it  still  but  that  the  authority  of  Cannan  v.  Bryce  *  and  Mc- 
Kinnell  v.  Robinson  *  concludes  the  matter."  • 

The  Rule  in  America 

There  is  some  conflict  in  this  country  on  this  point,  but  the  cases, 
on  the  whole,  are  consistent  with  the  rule  that  the  mere  knowledge 
on  the  part  of  one  party  to  a  contract  that  the  other  contemplates 
an  illegal  purpose  will  not  invalidate  the  contract.     We  can  best 

«  3  Barn.  &  Aid.  179.  See  "Contracts,*"  Dec.  Dig.  (Key-No.)  §  102;  Cent. 
Dig.  §§  .'i62-''i6-r. 

«3  Mees.  &  W.  4.35.  See  "Contracts,**  Dec.  Dig.  (Key-No.)  |  102;  Cent. 
Dig.  §§  J,rj2-Jf67. 

»  Pearce  v.  Brooks.  L.  R.  1  Exch.  213.  This  case  seems  to  have  gone  fur- 
ther than  the  Cases  which  the  court  followed,  which  were  actions  brought 
for  the  recovery  of  money  lent  for  an  illcfral  object,  the  money  being  fur- 
nished for  the  express  purpose  of  accomplishing  that  object  See  "Contracts," 
Dec.  Dig.  (Key-No.)  S  ^02;    Cent.  Dig.  §§  i62-',67. 


414  LEGALITY   OF   OBJECT  (Ch.  8 

arrive  at  a  correct  understanding  of  the  rules  established  by  the 
weight  of  authority  in  this  country  by  taking  cases  of  sales  of 
goods  and  loans  of  money  for  illustrations,  as  it  is  generally  with 
reference  to  them  that  the  question  arises.  We  will  divide  the 
subject  accordingly,  as  some  of  the  courts  seem  to  have  made  a 
distinction  between  sales  of  goods  and  loans  of  money. 

Same — Sale 

It  is  everywhere  settled  that,  if  it  is  a  part  of  the  contract  under 
which  the  goods  are  sold  that  they  shall  be  used  for  an  unlawful 
purpose,  then  the  contract  is  void,  and  the  price  cannot  be  recov- 
ered ;  and  the  same  is  no  doubt  true  where  goods  are  sold  for 
the  purpose  of  enabling  the  buyer  to  accomplish  an  unlawful 
purpose,  for  in  the  latter  case  there  is  an  unlawful  intention  on 
the  part  of  both  parties.®  Some  cases  hold  that  the  sale  is  void 
if  made  "with  a  view  to"  the  illegal  purpose.^ 

«  Talmage  v.  Pell,  7  N.  Y.  828 ;  St  Louis  Fair  Ass'n  v.  Carmody,  151  Mo. 
566,  52  S.  W.  365,  74  Am.  St.  Rep.  571.  It  has  been  held,  for  Instance,  that 
if  liquor  is  sold  for  the  express  purpose  of  enabling  the  buyer  to  retail  it  in 
violation  of  law,  the  sale  is  illegal.  Kohn  v.  Melcher  (O.  C.)  43  Fed.  641, 
10  L.  R.  A.  439.  It  has  also  been  held  that  if  a  house  is  knowingly  leased 
or  furniture  sold  to  be  used  as  or  in  a  bawdyhouse,  or  for  any  other  unlaw- 
ful purpose,  the  rent  or  price  cannot  be  recovered.  Dougherty  v.  Seymour,  16 
Colo.  2S9,  26  Pac.  823;  Ashbrook  v.  Dale,  27  Mo.  App.  649;  Ernst  v.  Crosby, 
140  N.  Y.  364,  35  N.  E.  603 ;  Riley  v.  Jordan,  122  Mass.  231 ;  Edelmuth  v. 
McGarren,  4  Daly  (N.  Y.)  467;  Ralston  v.  Boady,  20  Ga.  449;  Sherman  v. 
Wilder,  106  INIass.  537 ;  Reed  v.  Brewer,  90  Tex.  144,  37  S.  W.  418 ;  Chateau 
V.  Singla,  114  Cal.  91,  45  Paa  1015,  33  L.  R.  A,  750,  55  Am.  St.  Rep.  63; 
Standard  Furniture  Co.  v.  Van  Alstine,  22  Wash.  670,  62  Pac.  145,  51  L.  R. 
A.  889,  79  Am.  St.  Rep.  900.  Some  of  the  above  cases  come  very  close  to 
the  English  rule.  See,  also.  Mound  v.  Barker,  71  Vt  253,  44  Atl.  346,  76  Am. 
St.  Rep.  767.  See  ''Sales,"  Dec.  Dig.  {Key-^o.)  §  fyS;  Cent.  Dig.  §§  101-101; 
"Contracts''  Cent.  Dig.  §  IfGJt. 

7  Webster  v.  Munger,  8  Gray  (Mass.)  584;  GRAVES  v.  JOHNSON.  156 
Mass.  211,  30  N.  B.  818,  15  L.  R.  A.  834,  32  Am.  St  Rep.  446,  Throckmorton 
Cas.  Contracts,  294;  Davis  v.  Bronson,  6  Iowa,  410.  "When  a  sale  of  in- 
toxicating liquors  in  another  state  has  Just  so  much  greater  approximation 
to  a  breach  of  the  Massachusetts  law  as  is  implied  in  the  statement  that  it  is 
made  with  a  view  to  such  a  breach  it  is  void.  Webster  v.  Munger,  8  Gray, 
584;  Orcutt  v.  Nelson,  1  Gray,  536,  541;  Hubbell  v,  Flint,  13  Gray,  277, 
279;  Adams  v.  Coulliard,  302  Mass.  107,  172,  173.  •  *  *  If  the  sale  would 
not  have  been  made  but  for  the  seller's  desire  to  induce  an  unlawful  sale 
in  ISIaine,  it  would  be  an  unlawful  sale.  *  *  *  We  assume  that  the  sale 
would  have  taken  place  whatever  the  buyer  had  been  expected  to  do  with 
the  goods.  ♦  *  *  The  question  is  whether  the  sale  is  saved  by  the  fact 
that  the  intent  mentioned  was  not  the  controlling  inducement  to  it  *  •  * 
If  the  sale  is  made  with  the  desire  to  help  him  (the  buyer)  to  his  end, 
although  primarily  made  for  money  the  seller  cannot  complain  if  the  illegal 
consequence  is  attributed  to  him.  If  the  buyer  knows  that  the  seller  while 
aware  of  his  intent  is  indifferent  to  It,  or  disapproves  of  it  it  may  be  doubt- 


§§    178-180)  EFFECT   OF   ILLEGALITY  415 

It  is  also  settled  that  if,  in  addition  to  a  sale  of  goods  which  the 
vendor  knows  are  to  be  used  for  an  illegal  purpose,  he  does  some 
act  in  aid  or  furtherance  of  the  unlawful  design,  his  contract  is  void, 
and  he  cannot  recover  the  price.  An  example  of  such  a  case  is 
where  a  person  who  sells  goods  not  only  knows  that  his  vendee  in- 
tends to^^gmuggle'tlTem  into"  the  country,  but  packs  them  up  or 
marks  ttiem  in  a  ma.rihef  convenient  for  the  purpose,  with  a  view  of 
their  being  smuggled.* 

If  the  vendor  of  goods  knows  that  they  are  to  be  used  for  the  per- 
petration of  a  crime  which  is  not  merely  malum  prohibitum  or  of 
inferior  criminality,  even  though  he  may  not  expressly  stipulate 
that  they  shall  "be  so  used,  and  though  he  does  nothing  further  than 
furnishing  them  to  aid  in  such  use,  the  contract  of  sale  is  illegal 
and  void,  and  he  cannot  recover  the  price.^  It  seems  that  it  is 
otherwise  where  the  crirne  intended  to  be  perpetrated  is  merely 
malum  prohibitum  or  of  inferior  criminality.^** 

ful  whether  the  connection  Is  sufficient.  It  appears  to  us  not  unreasonable 
to  draw  the  line  as  was  drawn  in  Webster  v.  Munger,  8  Gray,  584,  and  to 
say  that  when  the  illegal  Intent  of  the  buyer  Is  not  only  known  to  the  seller, 
but  encouraged  by  the  sale,  as  just  explained,  the  sale  is  void."  GRAVES  v. 
JOPTNSON,  supra,  per  Holmes,  J.  See  ''Sales,"  Dec.  Dig.  {Key-No.)  §  4S; 
Cent.  Dig.  §§  101-101 ;    ''Contracts,"  Cent.  Dig.  §  ^5^. 

8  Tracy  v.  Talraage,  14  N.  Y.  162,  67  Am.  Dee.  132 ;  Waymell  v.  Reed, 
5  Term  R.  599;  Gaylord  v.  Soragen,  32  Vt.  110,  76  Am.  Dec.  154;  Amot  v. 
Coal  Co.,  68  N.  Y.  566,  23  Am.  Rep.  190;  Foster  v.  Thurston,  11  Cush. 
(Mass.)  322;  Skiff  v.  Johnson,  57  N.  H.  475;  Banchor  v.  Mansel,  47  Me.  58. 
Concealing  and  disguising  form  of  liquor  sold.  In  order  to  evade  the  law. 
Aiken  v.  Blaisdell,  41  Vt.  655.  In  Massachusetts  the  court  has  shown  an 
inclination  to  follow  the  English  rule  on  this  point  In  Mclntyre  v.  Parks,  3 
Mete.  (Mass.)  207,  It  was  held  that  the  bare  fact  of  knowledge  on  the  part 
of  the  vendor  of  the  vendee's  unlawful  intent  was  not  enough  to  avoid  the 
sale ;  but  this  case,  though  not  overruled,  was  criticised  in  Webster  v. 
Munger,  8  Gray  (Mass.)  584.  And  see  GRAVES  v.  JOHNSON,  156  Mass. 
211,  30  N.  E.  818,  15  L.  R.  A.  834,  32  Am.  St.  Rep.  446,  Throckmorton  Cas. 
Contracts,  294;  Hubbard  v.  Moore,  24  La.  Ann.  591,  13  Am.  Rep.  128;  Samp- 
son V.  Townsend,  25  La.  Ann.  78 ;  Fishel  v.  Bennett,  56  Conn.  40,  12  Atl.  102. 
See  "Sales,"  Dec.  Dig.  {Key-No.)  §  48;  Cent.  Dig.  §§  101-101;  "Contracts," 
Cent.  Dig.  §  464. 

eHanauer  v.  Doane,  12  Wall.  342,  20  L.  Ed.  439:  Tatum  v.  Kclloy.  2". 
Ark.  209,  94  Am.  Dec.  717;  LIghtfoot  v.  Tenant,  1  Boa  &  P.  556;  Langton 
V.  Hughes,  1  Maule  &  S.  593;  Tracy  v.  Talmage,  14  N.  Y.  102,  67  Am.  Dec. 
132;  Howell  v.  Stewart,  54  Mo.  400;  Russell  v.  Post,  138  U.  S.  425,  11  Sup. 
Ct  353,  34  L.  Ed.  1009.  See  "Sales,"  Dec.  Dig.  {Key-No.)  S  48/  Cent.  Dig. 
§§  101-101 ;  "Contracts,"  Cent.  Dig.  §  ^5-}. 

10  Hanauer  v.  Doane,  12  W^all.  342,  20  L.  Ed.  439;  Gaylord  v.  Soragen,  32 
Vt.  110,  76  Am.  Dec.  154;  Hodgson  v.  Temple,  5  Taunt.  181;  Howell  v. 
Stewart,  54  Mo.  404.  See  "Sales,"  Dec.  Dig.  {Key-No.)  §  48;  Cent.  Dip.  §? 
101-101;    "Contracts,"   Cent.  Dig.   i  464- 


416  LEGALITY   OF  OBJECT  (Ch.  8 

If  the  particular  circumstances  do  not  bring  the  contract  of  sale 
within  any  of  the  cases  mentioned  above,  then,  according  to  the 
weight  of  authority  in  this  country,  the  contract  of  sale  is  not  il- 
legal merely  because  the  vendor  knew  that  the  goods  were  intended 
to  be  used  for  an  unlawful  purpose.^^  "The  law,"  it  is  said  in  a  New 
York  case,  "does  not  punish  a  wrongful  intent  when  nothing  is 
done  to  carry  that  intent  into  effect ;  much  less  bare  knowledge  of 
such  an  intent,  without  any  participation  in  it.  Upon  the  whole,  I 
think  it  clear,  in  reason  as  well  as  upon  authority,  that  in  a  case  like 
this,  where  the  sale  is  not  necessarily  per  se  a  violation  of  law,  un- 
less the  unlawful  purpose  enters  into  and  forms  a  part  of  the  con- 
tract of  sale,  the  vendee  cannot  set  up  his  own  illegal  intent  in  bar 
of  an  action  for  the  purchase  money."  ^^  In  accordance  with  this 
principle  a  contract  by  which  a  person  sells  his  property  and  busi- 
ness good  will  to  another  cannot  be  repudiated  on  the  ground  that 
the  purchaser  acquired  the  property  for  the  purpose  of  obtaining  a 
monopoly  of  the  business  and  in  pursuance  of  an  illegal  combina- 
tion in  restraint  of  trade.^' 

Same — Loan 

According  to  the  weight  of  authority,  if  a  person  lends  money  to 
another  for  the  express  purpose  of  enabling  the  borrower  to  use  it 

11  Tracy  v.  Talmage,  14  N.  T.  162,  67  Am.  Dec.  132;  HUl  v.  Spear,  50  N. 
H.  253,  9  Am.  Rep.  205;  Anheuser-Busch  Brewing  Ass'n  v.  Mason,  44  Minn. 
818,  46  N.  W.  558,  9  L.  R.  A.  506,  20  Am.  St.  Rep.  580;  Hanauer  v.  Doane. 
12  Wall.  342,  20  L.  Ed.  439 ;    Bickel  v.  Sheets,  24  Ind.  1 ;    Gaylord  v.  Soragen, 

32  Vt  110,  76  Am.  Dec.  154  (but  see  Territt  v.  Bartlett,  21  Vt  184 ;  McConihe 
V.  McMann,  27  Vt  95) ;    Walker  v,  Jeffries,  45  Miss.  160 ;   Webber  v.  Donelly, 

33  Mich.  469;  Cheney  v.  Duke,  10  Gill  &  J.  (Md.)  11;  Michael  v.  Bacon,  49 
Mo.  474,  8  Am,  Rep.  138;  Hedges  v.  Wallace,  2  Bush  (Ky.)  442,  92  Am.  Dec. 
497;  Armfield  v.  Tate,  29  N.  C.  258;  Rose  v.  Mitchell,  6  Colo.  102,  45  Am. 
Rep.  520;  McKinney  v,  Andrews,  41  Tex.  363  (but  see  Roquemore  v.  Allo- 
way,  33  Tex.  461) ;  Howell  v,  Stewart,  54  Mo.  400 ;  Delavina  v.  Hill,  65  N. 
H.  94,  19  Atl.  1000;  Gambs  v.  Sutherland's  Estate,  101  Mich.  355,  59  N.  W, 
652;  Goodall  v,  Bre\\dng  Co.,  56  Ohio  St.  257,  46  N.  E.  983;  Hollenberg 
Music  Co.  V,  Berry,  85  Ark.  9,  106  S,  W.  1172,  122  Am.  St.  Rep.  17 ;  Wash- 
ington Liquor  Co.  v.  Shaw,  38  Wash.  398,  80  Pac,  536,  3  Ann,  Cas.  153,  He 
who  performs  labor  and  furnishes  materials  for  a  bar  and  the  room  con- 
taining it  may  recover,  though  he  knew  they  were  intended  to  be  used  for 
unlawful  purposes,  Bryson  v.  Haley,  68  N.  H.  337,  38  Atl.  1006.  See  "Sales," 
Dec.  Dig.  (Key-No.)   §  ^8;    Cent.  Dig.  §§  101-107;    "Contracts;'  Cent.  Dig.  § 

12  Tracy  v.  Talmage,  14  N.  Y,  102,  67  Am.  Dec.  132.  See  "Sales,"  Dec.  Dig. 
(Key-No.)  §  48;  Cent.  Dig.  §§  101-101;  "Cmitracts,"  Dec.  Dig.  (Key-No.)  | 
102;  Cent.  Dig.  §  46-J. 

18  Camors-McConnell  Co.  v.  McConnell  (C.  C.)  140  Fed.  412;  DIAMOND 
MATCH  CO.  T,  ROEBER,  106  N,  Y.  473,  13  N.  E.  419,  60  Am.  Rep.  464, 
Throckmorton  Cas.  Contracts,  264.  See  "Contracts"  Dec^  Dig.  (Key-No.)  § 
102iJJmirDig.  §§  462-467. 


§§    178-180)  EFFECT   OF   ILLEGALITY  417 

to  accomplish  an  illegal  object,  the  transaction  is  illegal,  and  he 
cannot  recover  it.^*  It  is  not  easy  to  draw  any  legal  distinction  in 
respect  to  the  legality  of  the  transaction  between  a  loan  of  money 
to  be  used  for  an  illegal  purpose  and  a  sale  of  goods  to  be  so  used, 
and  probably  there  is  none.  In  a  leading  case  it  is  said:  "The 
plaintiff  claims  to  recover  a  sum  of  money  loaned  by  him  while  the 
defendant  was  engaged  in  playing  at  cards.  The  ruling  at  the  trial 
was  that  if  the  plaintiff  lent  the  money  with  an  express  understand- 
ing, intention,  and  purpose  that  it  was  to  be  used  to  gamble  with, 
and  it  was  so  used,  the  debt  so  created  cannot  be  recovered,  but 
otherwise  if  the  plaintiff  had  merely  knowledge  that  the  money  was 
to  be  so  used.  Upon  authority  and  principle  the  ruling  was  cor- 
rect. *  *  *  In  order  to  find  the  lender  in  fault,  he  must  himself 
have  an  intention  that  the  money  shall  be  illegally  used.  There 
must  be  a  combination  of  intention  between  lender  and  borrower — 
a  umdrTtjf-p'arposes.  The  lender  must  in  some  manner  be  a  con- 
federate or  participator  in  the  borrower's  act — be  himself  implicat- 
ed in  it.  He  must  loan  his  money  for  the  express  purpose  of  pro- 
moting the  illegal  design  of  the  borrower;  not  intend  merely  to 
serve  or  accommodate  the  man."  ^^ 

KCannan  v.  Bryce,  3  Barn.  &  Aid.  179;  McKinnell  v.  Robinson,  3  Mees.  & 
W.  435;  TYLER  v.  CARLISLE,  79  Me.  210,  9  Atl.  356,  1  Am.  St.  Rep. 
801,  Throckmorton  Cas.  Contracts,  297;  White  v.  Buss,  3  Cush.  (Mass.)  448; 
Ruckman  v.  Bryan,  3  Denio  (N.  Y.)  346;  Peck  v.  Briggs,  3  Denio  (N.  Y.) 
107 ;  Cutler  v.  Welsh,  43  N.  II.  497 ;  Wright  v.  Crabbs,  78  Ind.  487 ;  Mordecai 
V.  Dawkins,  9  Rich.  (S.  C)  262;  Williamson  v.  Baley,  78  Mo.  636;  Emerson 
T.  Townsend,  73  Md.  224,  20  Atl.  984;  Raymond  v.  Leavitt,  46  Mich.  447,  9 
N.  W.  525,  41  Am.  Rep.  170;  Critcher  v.  Holloway,  64  N.  C.  526;  Viser  v. 
Bertrand,  14  Ark.  2G7 ;  White  v.  Wilson's  Adm'rs,  100  Ky.  367,  38  S.  W.  495. 
87  L.  R.  A.  197.  It  has  been  said,  however,  that  money,  though  loaned  Sov 
the  pui-pose  of  being  used  for  gambling  purposes,  may  be  recovered,  if  it 
was  not  in  fact  so  used.  TYLER  v.  CARLISLE,  supra.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  102;   Cent.  Dig.  §§  462-46 Jf. 

IS  TYLER  V.  CARLISLE,  79  Me.  210,  9  Atl.  356,  1  Am.  St  Rep.  301, 
Throckmorton  Cas.  Contracts,  297.  And  see  Armstrong  v.  Bank,  133  IJ.  S. 
433,  10  Sup.  Ct.  450,  33  L.  Ed.  747 ;  Plank  v.  Jackson,  128  Ind.  424,  26  N.  B. 
568,  27  N.  E.  1117;  Jackson  v.  Bank,  125  Ind.  347,  25  N.  B.  430,  9  L.  R.  A. 
657*;  Howell  v.  Stewart,  54  Mo.  400;  Lyon  v.  Respass,  1  Litt  (Ky.)  133, 
Lewis  V.  Alexander,  51  Tex.  578;  Waugh  v.  Beck,  114  Pa.  422,  6  ^tl.  923, 
60  Am,  Rep.  354;  Jones  v.  Bank,  9  Heisk.  (Tenn.)  455;  Hines  v.  Union 
Savings  Bank  &  Trust  Co.,  120  Ga.  711,  48  S.  E.  120.  A  loan  of  money,  in- 
tended to  pay  lost  bets,  has  been  held  to  be  recoverable.  "The  mischief  had 
been  completed,"  it  was  said  in  such  a  case.  "The  Illegal  act  had  be-'n  car- 
ried out  before  the  money  was  lent."  Pyke's  Case,  8  Ch.  Div.  756.  And  see 
Armstrong  v.  Toler,  11  Wheat.  258,  6  L.  Ed.  468;  Armstrong  v.  Bank,  13:^ 
U.  S.  433,  10  Sup.  Ct.  450,  33  L.  Ed.  747.  Bee  "Oatning,"  Dec.  Dig  {Key-No-)  i 
18;   Cent.  Dig.  §§  S6-S8. 

G)LABK  Cont.(3d  Ed.) — 27 


413  LEGALITY   OF   OBJECT  (Ch.  8 

Unlawful  Intention  on  One  Side  Only 

Where  one  of  the  parties  intends  a  contract,  innocent  in  itself,  to 
further  an  illegal  purpose,  and  the  other  enters  into  the  contract  in 
ignorance  of  his  intention,  the  innocent  party  is  entitled  to  full  ben- 
efits under  the  contract.^*  In  the  case  of  contracts  of  sale  for  future 
delivery,  for  instance,  if  one  of  the  parties  intends  a  bona  fide  sale, 
he  may  enforce  the  contract,  though  the  other  party  may  have  in- 
tended no  actual  sale,  but  merely  an  illegal  speculation  on  future 
prices, ^^ 

On  the  other  hand,  if  the  contract  is  still  executory,  he  is  not 
bound  to  go  on  w^ith  it,  but  may  avoid  it  at  his  option.^'  Thus 
where,  in  an  action  for  breach  of  an  agreement  by  the  defendant  to 
let  to  plaintiff  a  set  of  rooms,  it  appeared  that  the  plaintiff  intended 
to  use  the  rooms  for  the  purpose  of  delivering  blasphemous  lec- 
tures, which  were  unlawful  under  a  statute,  though  the  defendant 
was  not  aware  of  such  a  purpose  when  the  agreement  was  made, 
and  he  afterwards  refused  to  allow  the  plaintiff  to  use  the  rooms,  it 
was  held  that  he  was  entitled  to  avoid  the  contract.^* 


SAME— PROMISES  TO  PAY  MONEY  DUE  ON  ILLEGAL 

TRANSACTIONS 

181.  The  effect  of  a  promise  to  pay  money  due  or  to  become  due 
upon  an  illegal  transaction  may  be  stated  as  follows : 

(a)  Where  the  transaction  was  illegal  in  the  strict  sense,  and  not 

merely  void  and  unenforceable,  the  promise,  not  being  in 
the  form  of  a  negotiable  instrument,  is  void,  whether  un- 
der seal  or  not. 

(b)  Where  the  transaction  was  not  illegal,  but  merely  void  and 

unenforceable,  a  parol  promise,  not  being  in  the  form  of  a 
negotiable  instrument,  is  void  as  without  consideration; 
but  a  promise  under  seal  is  valid. 

18  Pixley  V.  Boynton,  79  111.  .351;  Quirk  v.  Thomas,  6  Mich.  76;  Scanlon 
V.  Warren,  1G9  111.  142,  48  N.  E.  410.  See  "Contracts,"  Dec.  Dig.  {Key-No.) 
§  102;    Cent.  Dig.  §§  462-467. 

17  Williams  v.  Tiedemaun,  6  Mo.  App.  269;  Pixley  v.  Boynton,  79  111.  351; 
Whitesides  v.  Hunt,  97  Ind.  191,  49  Am.  Rep.  441;  Gregoi-y  v.  Wendell,  39 
Mich.  337,  33  Am.  Rep.  390;  post,  p.  429.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  102;   Cent.  Dig.  §§  462-467. 

18  Cowan  V.  Milboum,  L.  R.  2  Exch.  230;  Church  v.  Proctor,  66  Fed.  240, 
13  C.  C.  A.  426.  And  see  Clay  v.  Yates,  1  Hurl.  &  N.  78.  But  see  O'Brien  t. 
Brietenbach,  1  Hilt.  (N.  Y.)  304.  See  "Contracts."  Dec.  Dig.  (Key-No.)  f 
102;    Cent.  Dig.  §§  462-467. 

19  Cowan  V.  Milbourn,  L.  R.  2  Exch.  230.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  102;    Cent.  Dig.  §§  462-467. 


§    181)  '  EFFECT  OF  ILLEGALITY  419 

(c)  Where  the  promise  is  in  the  form  of  a  negotiable  instrument 
the  above  rules  still  apply  as  between  the  immediate  par- 
ties, and  as  against  all  persons  who  are  not  bona  fide  pur- 
chasers for  value.  In  the  hands  of  bona  fide  purchasers 
for  value  the  instrument  is  valid,  whether  the  transaction 
was  illegal  or  merely  void,  unless  a  statute  declares  that 
the  instrument  shall  be  void. 

Where  a  promise  has  been  given  to  secure  the  payment  of  money 
due  or  about  to  become  due  upon  an  illegal  transaction,  the  validity 
of  such  a  promise,  as  between  the  immediate  parties,  or  others  oc- 
cupying the  same  position,  is  based  upon  two  considerations:  (1) 
Whether  the  transaction  was  illegal  or  merely  void,  and  (2)  wheth- 
er or  not  the  promise  is  made  under  seal.  Where  the  promise  is 
given  in  the  form  of  a  negotiable  instrument,  a  further  question 
arises  as  to  its  value  in  the  hands  of  third  parties,  but  it  will  prevent 
confusion  if  we  treat  of  the  latter  question  separately. 

There  is  a  distinction,  not  very  easy  to  analyze,  but  of  considerable 
practical  importance,  between  cases  in  which  the  common  law  or 
statutes  make  an  object  illegal,  and  cases  in  which  they  make  it 
merely  void.  The_effeci_Df-th€-4iff«rence  is  this :  that  in  the  one 
case  the  promise  is  regarded  as  given  upon  an  illegal  consideration, 
while  in  the  other  it  is  regarded  as  given  on  no  consideration  at  all. 
In  the  first  case  everything  connected  with  the  transaction  is  "taint- 
ed with  illegality,"  while  in  the  second  collateral  contracts  arising 
out  of  the  avoided  transaction  are,  under  certain  circumstances,  sup- 
ported. 

In  cases  where  the  transaction  is  illegal,  a  promise,  even  under 
seaTrgTverTto  secure  the  payment  of  money  due  upon  it,  is  void,.  In 
an  action  upon  a  covenant  to  pay  money,  in  which  the  defense  was 
that  the  covenant  was  security  for  the  payment  of  a  sum  of  money 
due  upon  a  purchase  of  land  conveyed  for  a  purpose  prohibited  by 
statute,  the  court  of  exchequer  chamber,  reversing  the  judgment  of 
the  queen's  bench,  held  that  the  illegality,  when  proved,' tainted  the 
subsequent  promise,  and  that  this  was  not  a  simple  promise  to  pay 
money,  but  that  it  "springs  from  and  is  the  creature  of  the  illegal 
agreement."  '^     It  will  be  noticed  that  in  the  case  mentioned  the 

2  0  Fisher  v.  Bridges,  3  El.  &  Bl.  642.  And  see  Everingham  v.  Meighan, 
55  Wis.  3.^.4,  13  N.  W.  2G9 ;  Claflin  v.  Torlina,  56  Mo.  309;  Howe  v.  Litchfield, 
3  Allen  (Mass.)  443;  Stanton  v.  Allen,  5  Denio  (N.  Y.)  435,  49  Am.  Dec. 
282;  Holden  v.  Cosgrove,  12  Gray  (Mass.)  21G;  Hall  v.  Gavitt,  18  Ind.  390; 
Crossley  v.  Moore,  40  N.  J.  Law,  27;  Chaucely  v.  Bailey,  37  Ga.  532,  95  Am. 
Dec.  350;  Coulter  v.  Rohertson,  14  Smedes  &  M.  (Miss.)  18.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  |  105;   Cent.  Dig.  §§  ^78-497. 


420  LEGALITY   OF  OBJECT  (Ch.  8 

promise  was  under  seal,  but  that  made  no  difference;  for,  although 
want  of  consideration  will  not  defeat  a  sealed  contract,  the  seal 
will  not  prevent  the  contract  from  being  void  if  the  consideration, 
where  there  was  a  consideration,  was  illegal.  The  objection  on  the 
ground  of  illegality  is  "rather  that  of  the  public,  speaking  through 
the  court,  *  *  *  not  from  any  consideration  of  the  moral  posi- 
tion and  rights  of  the  parties,  but  upon  grounds  of  public  policy."  '^ 

Where  the  consideration  is  not  illegal,  but  the  transaction  is 
merely  void,  a  promise  given  to  pay  money  due  upon  such  a  trans- 
action is  based  upon  no  consideration  at  all.  If  made  under  seal, 
it  is  binding,  for  no  consideration  is  then  necessary;  but^  iTmade  by 
parol,  it  is  void.  Where  a  municipal  corporation,  for  instance,  bor^ 
rowed  money,  and  gave  a  mortgage,  which  a  statute  declared  it  un- 
lawful for  them  to  give  without  complying  with  certain  conditions 
which  they  failed  to  observe,  it  was  held  that,  though  the  mortgage 
was  invalid,  the  corporation  was  liable  on  its  covenant  therein  to 
repay  the  money  it  had  received.^*  So,  also,  in  case  of  promises  of 
payment  made  in  consideration  of  past  illicit  cohabitation,  the 
promises  are  invalid  if  made  by  parol ;  not  on  the  ground  that  the 
consideration  is  illegal,  but  because  there  is  in  fact  no  considera- 
tion at  all.^'  A  bond  given  upon  such  a  past  consideration,  because 
of  the  seal,  would  be  binding.'* 

It  is  often  a  difficult  question  to  determine  whether  a  given  con- 
tract is  illegal  or  merely  void,  and  there  is  much  direct  conflict  in  the 
decisions.  Of  course  there  can  be  no  question  but  that  it  is  illegal 
where  it  involves  the  commission  of  a  crime  which  is  malum  in  se, 
or,  it  seems,  where  it  tends  to  the  prejudice  of  the  public,  and  is  void 
because  against  public  policy;  '*  but  it  is  not  so  easy  to  declare  a 
transaction  illegal  in  the  strict  sense,  where  it  is  only  unlawful  be- 
cause prohibited  by  statute.    In  an  English  case  it  was  held  that  a 

21  Lyon  V.  Waldo,  36  Mich.  34.5,  S53.  See  Parks  v.  McKamy,  3  Head 
(Tenn.)  297;  Wooden  v.  Shotwell,  23  N.  J.  Law,  465;  Bnffendeau  v.  Brooks, 
28  Cal.  641;  Seidenbender  v.  Charles'  Adm'rs,  4  Serg.  &  R.  (Pa.)  151,  8  Am. 
Dec.  6S2.     See  "Contracts,"  Dec.  Dig.   (Key-No.)  §  105;    Cent.  Dig.  §§  478- 

m. 

22  Payne  v.  Mayor  of  Brecon,  3  Hurl.  &  N.  579.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  105;    Cent.  Dig.  §§  478-^97. 

2  3  Beaumont  v.  Reeve,  8  Q.  B.  483.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  112;   Cent.  Dig.  §§  512-511,. 

.  24  Ayerst  v.  Jenkins,  L.  R,  16  Eq.  275.     See  "Contracts,"  Dec.  Dig.   (Key- 
No.)  §  112;    Cent.  Dig.  §§  512-51  Jf. 

2  8  BISHOP  V.  PALMER,  146  Mass.  469,  16  N.  E.  299,  4  Am.  St  Rep.  339, 
Throckmorton  Cas.  Contracts,  290;  PTarvey  v.  Merrill,  150  Mass.  1,  22  N.  E, 
49,  5  L.  R.  A.  200,  15  Am.  St.  Rep.  159.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
S  136;    Cent.  Dig.  §§  681-700. 


§    181)  EFFECT   OF   ILLEGALITY  '  421 

note  given  to  secure  the  payment  of  money  under  a  wagering  con- 
tract did  not  take  its  inception  in  illegality  within  the  meaning  of 
the  rule  we  have  been  discussing.  "There  is  no  penalty  attached  to 
such  a  wager,"  it  was  said.  "It  is  not  in  violation  of  any  statute, 
nor  of  the  common  law,  but  is  simply  void ;  so  that  the  considera- 
tion was  not  an  illegal  consideration,  but  equivalent  in  law  to  no 
consideration  at  all."  ^*  In  those  of  our  states  where  wagers  are 
held  contrary  to  public  policy,  even  where  there  is  no  statute  pro- 
hibiting them,  the  ruling  on  this  point  would  be  different.^'' 

An  assignee  of  an  illegal  contract  not  negotiable  stands  in  the 
same  position  as  his  assignor  and  may  not  obtain  any  relief  to 
which  his  assignor  was  not  entitled.*' 

Negotiable  Instruments 

In  the  case  of  negotiable  instruments  we  have  to  consider  not 
only  the  effect  of  the  illegality  as  between  the  original  parties,  but 
the  effect  upon  subsequent  holders  of  the  instrument.  A  negotiable 
instrument  given  upon  an  illegal  transaction  is  like  any  other  sim- 
ple contract  as  between  the  immediate  parties,  and  cannot  be  en- 
forced unless  it  has  passed  into  the  hands  of  a  bona  fide  purchaser 
for  value.^®  Whether  it  can  be  enforced  in  the  latter  event  will  de- 
pend on  the  circumstances.  The  position  of  such  a  purchaser  may 
be  shortly  stated  as  follows : 

(1)  If  the  transaction  in  which  the  instrument  was  given  was  not 
illegal,  but  merely  void,  so  that  the  instrument  is  based,  not  on  an 
illegal  consideration,  but  on  no  consideration  at  all,  it  may  be  en- 
forced by  one  who  purchased  the  same  for  value  before  maturity, 
and  without  notice  of  the  want  of  consideration.  In  such  a  case 
it  is  to  be  presumed,  prima  facie,  that  the  holder  paid  value,  and  had 
no  notice  of  want  of  consideration.'** 

2  9  Fitch  V.  Jones,  5  El.  &  Bl.  245.  See,  also,  Thacker  v.  Hardy,  4  Q.  B. 
Div.  685.  Bee  "Contracts;'  Dec.  Dig.  {Key-No.)  §  136;  Cent.  Dig.  §§  6S1- 
100. 

2T  Embrey  v.  Jemison,  131  U.  S.  336,  9  Sup.  Ct.  776,  33  L.  Ed.  172;  Harvey 
V.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St.  Rep.  159; 
Mohr  V.  Mlesen,  47  Minn.  228,  49  N.  W.  SG2 ;  ante,  p,  S46.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  JSG;    Cent.  Dig.  §§  681-100. 

2  8  Benson  v.  Bawden,  149  Mich.  584,  113  N.  W.  20,  13  L.  R.  A.  (N,  S.)  721. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  ISS;   Cent.  Dig.  §§  681-100. 

2»  Embrey  v.  Jemison,  131  U.  S.  336,  9  Sup.  Ct.  776,  33  L.  Ed.  172.  See 
"Bills  and  Notes,"  Dec.  Dig.  (Key-No.)  §  575;  Cent.  Dig.  §§  911-981;  "Gang- 
ing," Cent.  Dig.  §  44. 

30  Norton,  Bills  &  N.  (3d  Ed.)  327,  332;  Mechanics'  &  Traders'  Nat.  Bank 
V.  Crow,  60  N.  Y.  85;  Harger  v.  Worrall,  69  N.  Y.  370,  25  Am.  Rep.  206; 
Little  V.  Mills,  98  Mich.  423,  57  N.  W.  266.  -See  "Bills  and  Notes,"  Dec.  Dig. 
(Key-No.)   i  315;    Cent.  Dig.  §§  911-981. 


422  LEGALITY   OF  OBJECT  (Ch.  8 

(2)  If  the  transaction  in  which  the  instrument  was  given  was  il- 
legal, unless  the  illegality  is  by  force  of  a  statute  which  renders  the 
instrument  absolutely  void,  a  bona  fide  holder  for  value  may  enforce 
it.  "If  the  legislature  has  declared  that  the  illegality  of  the  con- 
tract or  consideration  shall  make  the  note  void,  the  defendant  may 
set  up  that  defense,  though  the  note  be  in  the  hands  of  a  bona  fide 
holder;  "  but  unless  it  has  been  so  expressly  declared  by  the  legis- 
lature, illegality  of  consideration  will  be  no  defense  against  a  bona 
fide  holder,  without  notice,  and  for  sufficient  consideration,  unless 
he  obtained  the  note  after  it  became  due."  ^^  In  such  a  case,  how- 
ever, the  ordinary  presumption  in  favor  of  the  holder  does  not  exist. 
Upon  proof  of  the  illegality  which  tainted  the  instrument  in  its  in- 
ception, the  holder  must  show  that  he  paid  value  for  the  instru- 
ment; and  even  then,  if  it  is  shown  that  he  knew  of  the  illegality, 
he  cannot  recover.'^  ]\Iost  courts  even  hold  that  the  burden  is  on 
the  holder  to  show  that  he  had  no  notice  of  the  illegality.** 

81  City  of  Aurora  v.  West,  22  Ind.  88,  85  Am.  Dec.  413;  Lagonda  Nat. 
Bank  v.  Portner,  46  Ohio  St.  3S1,  21  N.  E.  634;  Meadow  v.  Bird.  22  Ga. 
246;  Vnger  v.  Boas,  13  Pa.  601;  Snoddy  v.  Bank,  88  Tenn.  573,  13  S.  W. 
127,  7  L.  R.  A.  705,  17  Am.  St.  Rep.  918;  Hai-per  v.  Young,  112  Pa.  419. 
3  Atl.  670 ;  Emerson  v.  Townsend,  73  Md.  224,  20  Atl.  984 ;  Lucas  v.  Waul, 
12  Smedes  &  M.  (Miss.)  157;  Faris  v.  King,  1  Stew.  (Ala.)  255;  Traders' 
Bank  v.  Alsop.  64  Iowa,  97,  19  N.  W.  803.  See  ''Bills  and  Xotes,"  Dec.  Dig. 
(Key-Xo.)  §§  373,  375;    Cent.  Dig.  §§  966-DSl. 

32  Vallett  V.  Parker,  6  Wend.  (N.  Y.)  615 ;  Town  of  Eagle  v.  Kohn,  84 
111.  292 ;  Sondheim  v.  Gilbert,  117  Ind.  71,  18  N.  E.  687,  5  L.  R.  A.  432.  10 
Am.  St.  Rep.  23;  Glenn  v.  Bank.  70  N.  C.  191;  Fuller  v.  Green,  64  Wis. 
159,  24  N.  W.  907,  54  Am.  Rep.  600;  Bayley  v,  Taber,  5  Mass.  286,  4  Am. 
Dec  57;  Root  v.  Merriam  (C.  C.)  27  Fed.  0C9;  Crawford  v.  Spencer,  92  Mo. 
49S,  4  S.  W.  713,  1  Am.  St.  Rep.  745;  Shaw  v.  Clark,  49  Mich.  384,  13  N.  W. 
786,  43  Am.  Rep.  474 ;  Thorne  v.  Yontz,  4  Cal.  321 ;  Meadow  v.  Bird,  22  Ga. 
246;  Johnston  v.  Dickson,  1  Blackf.  (Ind.)  256;  Rockwell  v.  Charles,  2  Hill 
(N.  Y.)  499;  Knox  v.  White,  20  La.  Ann.  326;  Gordon  v.  Levine,  197  Mass. 
263,  83  K  E.  861,  15  L.  R.  A.  (N.  S.)  243,  125  Am.  St  Rep.  361.  But  see 
Cunningham  v.  Bank,  71  Ga.  400,  51  Am.  Rep.  266.  See  "Bills  and  Notes," 
Dec.  Dig.  {Key-No.)  §§  373,  375;    Cent.  Dig.  §§  966-981. 

3  3  Note  31,  supra. 

3  4  Norton,  Bills  &  N.  (3d  Ed.)  333;  Canajoharie  Nat  Bank  v.  Diefendorf, 
123  N.  Y.  191,  25  N.  E.  402,  10  L.  R.  A.  676;  Vosburgh  v.  Diefendorf,  119 
N.  Y.  357,  23  N.  E.  801,  10  Am.  St  Rep.  836;  McDonald  v.  Aufdengarten, 
41  Neb.  40,  59  N.  W.  762;  State  Nat  Bank  v.  Bennett  8  Ind.  App.  679,  36 
N.  E.  551.     See  "Contracts,"  Deo.  Dig.   {Key-No.)  §  I4I;    Cent.  Dig.  §  1760. 


§§  182-185)  EFFECT  OF  ILLEGALITY  423 

SAME— RELIEF  OF  PARTY  TO  UNLAWFUL  AGREE- 
MENT 

182.  In  no  case  can  an  action  be  maintained  to  enforce  an  illegal 

agreement. 

183.  Where  an  agreement  has  been  executed  in  whole  or  in  part 

by  the  payment  of  money  or  the  transfer  of  other  proper- 
ty, the  court  will  not  generally  lend  its  aid  to  recover  it 
back.  The  rule  is  that  the  court  will  not  lend  its  aid 
to  a  party  who,  as  the  ground  of  his  claim,  must  disclose 
an  illegal  transaction.  This  rule  is  subject  to  exceptions 
as  follows,  where  the  action  is  brought,  not  to  enforce  the 
agreement,  but  in  disaffirmance  of  it: 

EXCEPTIONS — (a)  In  some  cases  a  locus  pcsnitentias  remains, 

and,  while  the  agreement  is  unperformed,  money  or  goods 

delivered  in  furtherance  of  it  are  allowed  to  be  recovered. 

(b)  Where  the  parties  are  not  in  pari  delicto,  the  one  who  is 

less    guilty   may   recover   what   he    has   parted   with,   as 

(1)  Where  the  party  asking  relief  was  induced  to  enter  into 

the  agreement  under  the  influence  of  fraud  or  strong 
pressure. 

(2)  Where  the  law  which  makes  the  agreement  unlawful 

was  intended  for  the  protection  of  the  party  asking 
relief. 

184.  A  broker,  or  other  agent,  employed  to  carry  out  an  illegal 

transaction,  cannot  recover  compensation,  reimbursement, 
or  indemnity  in  respect  to  the  transaction,  if  he  was  privy 
to  the  principal's  unlawful  purpose. 

185.  No  recovery  may  be  had  upon  a  quantum  meruit  or  quantum 

valebant  for  benefits  received  under  an  illegal  contract. 

It  is  a  well-settled  rule  that  in  no  case  will  the  court  lend  its 
aid  to  the  enforcement  of  an  illegal  agreement.  Further  than  this, 
if  the  agreement  has  been  executed,  in  whole  or  in  part,  by  the 
payment  of  money  or  transfer  of  property,  the  court  will  not,  as 
a  rule,  entertain  an  action  to  recover  it  back."  The  rule  is  neces- 
sary on  the  ground  of  public  policy.  "The  objection,"  said  Lord 
Mansfield  in  a  leading  case,  "that  a  contract  is  immoral  or  illegal, 
as  between  plaintifif  and  defendant,  sounds  at   all  times  very  ill 

«8  Harrlman  v.  Northern  Securities  Co.,  197  U.  S.  244,  25  S.  Ct.  493,  49  L. 
Ed.  739.     See  -Contracta;'  Dec.  Dig.  {Key-No.)  §  13S;    Cent.  Dig.  §§  6S1-700. 


424  LEGALITY   OF   OBJECT  (Ch.  8 

in  the  mouth  of  the  defendant.  It  is  not  for  his  sake,  however, 
that  the  objection  is  ever  allowed,  but  it  is  founded  in  general 
principles  of  policy,  which  the  defendant  has  the  advantage  of, 
contrary  to  the  real  justice  as  between  him  and  the  plaintiff;  by 
accident,  if  I  may  so  say.  The  principle  of  public  policy  is  this: 
'Ex  dolo  malo  non  oritur  actio.'  No  court  will  lend  its  aid  to 
a  man  who  founds  his  cause  of  action  upon  an  immoral  or  an 
illegal  act.  If,  from  the  plaintiff's  own  stating  or  otherwise,  the 
cause  of  action  appears  to  arise  ex  turpi  causa,  or  the  transgression 
of  a  positive  law  of  this  country,  there  the  court  says  he  has  no 
right  to  be  assisted.  It  is  upon  that  ground  the  court  goes ;  not 
for  the  sake  of  the  defendant,,  but  because  they  will  not  lend  their 
aid  to  such  a  plaintiff.  So,  if  the  plaintiff  and  defendant  were  to 
change  sides,  and  the  defendant  was  to  bring  his  action  against 
the  plaintiff,  the  latter  would  then  have  the  advantage  of  it;  for 
where  both  are  equally  in  fault,  'potior  est  conditio  defendentis.'  "  ^' 
As  we  have  said,  therefore,  a  party  to  an  illegal  agreement  can- 
not, under  any  circumstances,  come  into  a  court  of  law  or  equity 
and  ask  to  have  his  illegal  objects  carried  out;  nor,  as  a  rule, 
can  he  ask  the  court  to  relieve  him  from  the  effect  of  his  agree- 
ment. He  cannot  set  up  a  case  in  which  he  must  necessarily  dis- 
close an  illegal  purpose  as  the  groundwork  of  his  claim.*''     This 

86  Holman  v.  Johnson,  1  Cowp.  341.  See.  also.  Frost  v.  Gage,  3  Allen 
(Mass.)  560;  Shenk  v.  Phelps,  6  111.  App.  612;  Jameson  v.  Carpenter,  68 
N.  H.  62,  36  Atl.  554;  Winchester  Electric  Light  Co.  v.  Veal,  145  Ind.  506, 
41  N.  E.  334,  44  N.  E.  353;  Crlehfleld  v.  Paving  Co.,  174  111.  466,  51  N.  E. 
552,  42  L.  R.  A.  347;  Todd  v.  Ferguson,  161  Mo.  App.  624,  144  S.  W.  158. 
See  "Contru-cts,"  Deo.  Dig.   {Key-lS'o.)  §  138;    Cent.  Dig.  §§  681-100. 

3  7Begbie  v.  Sewage  Co.,  L.  R.  10  Q.  B.  499;  Barclay  v.  Pearson  [1S93] 
2  Ch.  154;  Scott  v.  BrowTi  [1892]  2  Q.  B.  724;  Frost  v.  Gage,  3  Allen  (Mass.) 
560;  Emery  v.  Candle  Co.,  47  Ohio  St  320,  24  N.  E.  660,  21  Am.  St.  Rep. 
819;  Hill  V.  Freeman,  73  Ala.  200,  49  Am.  Rep.  48;  Haynes  v.  Rudd,  102 
N.  Y.  372,  7  N.  E.  287,  55  Am.  Rep.  815 ;  Gotwalt  v.  Neal,  25  Md.  434 ;  Roman 
V.  Mali,  42  Md.  513;  Bartle  v.  Coleman,  6  Wheat  475,  5  L.  Ed.  309;  Miller 
V.  Marckle,  21  111.  152;  Myers  v.  Meinrath,  101  Mass.  366,  3  Am.  Rep.  368; 
St  Louis,  V.  &  T.  H.  R.  Co.  v.  Railroad  Co.,  145  U.  S.  393,  12  Sup.  Ct.  953, 
36  L.  Ed.  748;  Singer  Mfg.  Co.  v.  Draper,  103  Tenn.  262,  52  S.  W.  879; 
Minzesheimer  v.  Doolittle,  60  N.  J.  Eq.  394,  45  AtLl^^l.  Where  persons? 
are  engaged  in  an  unlawful  transaction,  the  court  will  not  entertain  a  suit 
for  an  accounting  in  respect  to  the  profits  thereof.  Jackson  v.  McLean  (C. 
C.)  36  Fed.  213 ;  McMullen  v.  Hoffman,  174  U.  S.  639,  19  Sup.  Ct  839,  43  L. 
Ed.  1117;  Craft  v.  McConoughy,  79  111.  346,  22  Am.  Rep.  171;  Morrison  v. 
Bennett,  20  Mont  560,  52  Pac.  553,  40  L.  R.  A.  158 ;  Atwater  v.  Manville,  106 
Wis.  64,  81  N.  W.  985.  But  if  money  has  been  actually  paid  to  an  agent  for  the 
use  of  his  principal,  the  legality  of  the  transaction  of  which  it  was  the  fruit 
does  not  affect  the  right  of  the  principal  to  recover  It  out  of  the  agent's 
hands,  on  the  ground  that,  though  the  law  would  not  have  assisted  the  prin- 
cipal by  enforcing  the  recovery  of  it  from  the  party  by  whom  it  was  paid, 


§§    182-185)  EFFECT   OF   ILLEGALITY  425 

rule  is  expressed  in  the  maxim,  "In  pari  delicto  potior  est  con- 
ditio defendentis;"  that  is  to  say,  where  the  parties  are  equally 
in  fault  the  condition  of  the  defendant  is  the  better.  The  law,  in 
such  a  case,  will  leave  the  parties  where  it  finds  them.^* 

Where,  however,  the  contract  sought  to  be  enforced  has  no 
direct  correction  with  the  illegal  act,  but  is  merely  collateral 
to  it,  so  that  the  plaintiff  does  not  require  the  aid  of  the  illegal 
act  to  establish  his  claim,  he  may  recover.'® 

There  are  some  exceptional  cases  as  stated  in  the  black-letter 
text,  in  which  a  man  may  be  relieved  from  an  illegal  agreement. 
These  will  be  treated  more  fully. 

Locus  PcenitenticB 

Although  there  is  some  difference  of  opinion  on  the  subject, 
it  is  safe  to  say  that  in  some  cases  of  illegal  agreements,  at  least, 
if  they  are  not  mala  in  se,  but  merely  mala  prohibita,  a  locus 
poenitentiae  remains,  and  that,  while  the  illegal  object  has  not  been 
carried    out   by   performance    of    the   agreement,    money    paid    or 

yet,  when  that  contract  is  at  an  end,  the  agent,  whose  liability  arises  solely 
from  having  received  the  money  for  another's  use,  can  have  no  right  to 
retain  it.  Tenant  v.  Elliott,  1  Bos.  &  P.  S ;  Farmer  v.  Russell,  Id.  295 ;  Mc- 
Blair  v.  Gibbes,  17  How.  236,  15  L,  Ed.  132;  Brady  v.  Horvath,  167  111.  610, 
47  N.  E.  757 ;  Hertzler  v.  Geigley,  196  Pa.  419,  46  Atl.  866,  79  Am.  St.  Rep. 
724 ;  Hardy  v.  Jones,  G3  Kan.  8,  64  Pac.  969,  88  Am.  St.  Rep.  223.  In  Brooks 
v.  Martin,  2  Wall.  70,  17  L.  Ed.  732,  among  other  cases,  the  principle  was 
applied  so  as  to  allow  one  member  of  a  firm  formed  for  the  purpose  of  illegal 
transactions  to  recover  from  the  other  member  his  share  of  the  profits.  See, 
also,  in  support  of  this  doctrine,  State  v.  Railroad  Co.,  34  Md.  344,  at  page 
365;  Bonsfield  v.  Wilson,  16  Mees,  &  W.  185;  Haacke  v.  Knights  of  Liberty, 
76  Md.  429,  25  Atl.  422 ;  Daniels  v.  Barney,  22  Ind.  207 ;  Peters  v.  Grim,  149 
Pa.  163,  24  Atl.  192,  34  Am.  St.  Rep.  599 ;  Portsmouth  Brewing  Co.  v.  Mudge, 
68  N.  H.  462,  44  Atl.  600;  McDonald  v.  Lund,  13  Wash.  412,  43  Pac.  348; 
Andrews  v.  Association,  74  Miss.  362,  20  South.  837,  60  Am.  St.  Rep.  509. 
There  is  certainly  little  reason  in  the  distinction,  and  other  cases  have  re- 
fused to  recognize  it.  Vandegrift  v.  Vandegrift,  226  Pa.  254,  75  Atl.  3G5,  18 
Ann.  Cas.  404 ;  McMullen  v.  Hoffman,  174  U.  S.  639,  19  Sup.  Ct.  839,  43  L. 
Ed.  1117  (limiting,  if  not  overruling.  Brooks  v.  Martin,  supra).  One  sued  on 
an  implied  contract  for  services  rendered  may  under  a  general  denial  show 
an  express  contract,  and  it  is  immaterial  that  such  express  contract  was 
unla\\ful.  Stewart  v.  Thayer,  170  Mass.  560,  49  N.  E.  1020.  See  "Con- 
tracts;' Dec.  Dig.   (Key-No.)  §  138;    Cent.  Dig.  §§  681-700. 

8  8  Howson  V.  Hancock,  8  Term  R.  575;  Perkins  v.  Savage,  15  Wend.  (N. 
Y.)  412;  Burt  v.  Place,  6  Cow.  (N.  Y.)  431;  Johnson  v.  Berry.  20  S.  D.  133, 
104  N.  W.  1114,  1  L.  R.  A.  (N.  S.)  1159.  See  "Contracts,"  Dec  Dig.  (Key-No.) 
§  138;   Cent.  Dig.  §§  681-100. 

3  9  Elertrova  Co.  v.  Spring  Garden  Ins.  Co.,  156  N.  C.  232,  72  S.  E.  306,  35 
L.  R.  A.  (N.  S.)  1218.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  |  138;  Cent.  Dig. 
{§  681-100. 


426  LEGALITY   OF  OBJECT  (Ch.  8 

goods  delivered  under  it  may  be  recovered.*"  "It  best  comports 
with  public  policy  to  arrest  the  illegal  proceeding  before  it  is 
consummated."  *^  In  a  leading  English  case  on  this  point  the 
plaintiff  had  made  a  fictitious  assignment  of  goods  to  a  third 
party,  to  defraud  his  creditors,  and  the  defendant,  with  a  knowl- 
edge of  the  circumstances,  had  taken  a  bill  of  sale  of  the  goods 
from  the  assignee,  and  afterwards,  though  the  plaintiff  demanded 
them  back,  had  caused  them  to  be  ,put  up  at  auction  and  sold. 
Nothing  further  had  been  done  in  respect  of  the  fraud  contem- 
plated against  the  creditors,  and  the  plaintiff  was  allowed  to 
recover,  on  the  ground  that,  as  the  illegal  purpose  was  not  car- 
ried out,  there  was  a  locus  poenitentise.  "If  money  is  paid,"  it 
was  said  in  that  case,  "or  goods  delivered,  for  an  illegal  purpose, 
the  person  who  has  so  paid  the  money  or  delivered  the  goods  may 
recover  them  back  before  the  illegal  purpose  is  carried  out;  but 
if  he  waits  until  the  illegal  purpose  is  carried  out,  or  if  he  seeks 
to  enforce  the  illegal  transaction,  in  neither  case  can  he  maintain 
an  action."  ** 

So,  also,  in  a  case  where  persons  had  each  deposited  money  with 
another  on  a  wager,  and  one  of  them,  after  a  decision  of  the 
wager  against  him,  but  before  the  money  was  paid  over,  demanded 
it  back,  he  was  allowed  to  recover.*' 

*o  TYLER  V.  CARLISLE,  79  Me.  210,  9  Atl.  356,  1  Am.  St.  Rep.  301, 
Throckmorton  Cas.  Contracts,  297;  Barclay  v.  Pearson,  [1893]  2  Ch.  154; 
Clarke  v.  Brown,  77  Ga.  606,  4  Am.  St.  Rep.  98;  Peters  v.  Grim,  149  Pa.  103, 
24  Atl.  192,  34  Am.  St.  Rep.  599 ;  Skinner  v.  Henderson,  10  Mo.  205 ;  Adams 
Exp.  Co.  V.  Reno,  48  Mo.  264 ;  Souhegan  Nat.  Bank  v.  Wallace,  61  N.  H.  24 ; 
Wassermann  v.  Sloss,  117  Cal.  425,  49  Pac.  566,  38  L.  R.  A.  176,  59  Am.  St 
Rep.  209;  Stansfield  v.  Kunz,  62  Kan.  797,  64  Pac.  014.  But  see  Knowlton 
V.  Spring  Co.,  57  N.  Y.  518.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  138; 
Cent.  Dig.  §§  681-700. 

41  Stacy  V.  Foss,  19  Me.  335,  36  Am.  Dec.  755.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  138;  Cent.  Dig.  §§  681-700. 

42  Taylor  v.  Bowers,  1  Q.  B.  Div.  291.  See,  also,  Spring  Co.  v.  Knowlton, 
103  U.  S.  49.  26  L.  Ed.  347;  Gowan's  Adm'r  v.  Gowan,  30  Mo.  472.  The 
principle  of  Taylor  v.  Bowers,  supra,  as  well  as  its  application,  was  questioned 
in  Kearley  v.  Thomson,  24  Q,  B.  Div.  742,  746.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  %138;    Cent.  Dig.  §§  681-700. 

43  Hampden  v.  Walsh,  1  Q.  B.  Div.  189.  And  see  Fisher  v.  Hildreth,  117 
Mass.  558;  Bernard  v.  Taylor,  23  Or.  416,  31  Pac.  908,  18  L.  R.  A.  859,  37 
Am.  St  Rep.  693 ;  Lewis  v.  Bruton,  74  Ala.  317,  49  Am.  Rep.  816 ;  Weaver  v. 
Harlan,  48  Mo.  App.  319;  McDonough  v.  Webster,  68  Me.  530;  McAllister 
V.  Hoffman,  16  Serg.  &  R.  (Pa.)  147,  16  Am.  Dec.  556;  TYLER  v.  CARLISLE, 
79  Me.  210,  9  Atl.  356,  1  Ana.  St.  Rep.  301,  Throckmorton  Cas.  Contracts,  297 ; 
Stacy  V.  Foss,  19  Me.  335,  66  Am.  Dec.  755;  Wheeler  v.  Spencer,  15  Conn.  28; 
House  V.  McKenney,  46  Me.  94;  Shannon  v.  Baumer,  10  Iowa,  210;  Ilodson 
V.  Terrill,  1  Cromp.  &  M.  797 ;  Hastelow  v.  Jackson,  8  Barn.  &  C.  221 ;  MartiB. 
r.  Hewson,  10  Exch.  737;    Strachan  v.  Stock  Exchange  [1S95]  2  Q.  B.  329; 


§§    182-185)  EFFECT  OF  ILLEGALITY  427 

On  the  other  hand,  if  the  illegal  object  has  been  effected  by  the 
mere  deposit  of  the  money  or  goods,  they  cannot  be  recovered. 
And  it  seems  that,  if  the  illegal  contract  has  been  performed  in 
part,  there  can  be  no  recovery.**  In  an  English  case  the  defendant 
had  agreed  with  the  plaintiff  to  go  bail  for  him  for  a  specified 
time  if  the  plaintiff  w^ould  deposit  with  him  the  amount  of  the 
bail  as  an  indemnity  against  his  (plaintiff's)  possible  default,  the 
defendant  undertaking  to  return  the  money  at  the  expiration 
of  the  specified  time.  Before  the  time  had  expired,  the  plaintiff 
sued  for  the  money,  on  the  ground  that  the  agreement  was  illegal, 
and  that  he  was  entitled  to  rescind  it.  It  was  held  that  the  illegal 
purpose  was  effected  when  the  public  lost  "the  protection  which 
the  law  affords  for  securing  the  good  behaviour  of  the  plaintiff;" 
for,  as  it  was  said,  "when  a  man  is  ordered  to  find  bail,  and  a 
surety  becomes  responsible  for  him,  the  surety  is  bound,  at  his 
peril,  to  see  that  his  principal  obeys  the  order  of  the  court. 
*  *  ♦  But  if  money  to  the  amount  for  which  the  surety  is 
bound  is  deposited  with  him  as  an  indemnity  against  any  loss 
which  he  may  sustain  by  reason  of  his  principal's  conduct,  the 
surety  has  no  interest  in  taking  care  that  the  condition  of  the 
recognizance  is  performed."  *^ 

So,  also,  where  a  person  placed  money  to  the  credit  of  a  cor- 
poration to  give  it  a  fictitious  credit  in  case  of  inquiries,  the 
money  to  be  returned  to  him  at  a  specified  time,  and  he  sued  to 
recover  the  same  after  the  company  had  gone  into  liquidation,  he 
was  not  allowed  to  recover,  because  "the  object  for  which  the 
advance  was  made  was  attained  as  the  company  continued  to 
have  a  fictitious  credit  till  the  commencement  of  the  winding- 
up."  *« 

Pabst  Brewing  Co.  v.  Listen,  80  Minn.  473,  83  N.  W.  448,  81  Am.  St  Rep.  275 ; 
Falkenberg  v.  Allen,  18  Okl.  210,  90  Pac.  415,  10  L.  R.  A.  (N.  S.)  494.  In 
many  states  by  statute  persons  who  have  lost  money  by  gambling  may, 
under  certain  circumstances,  recover  it  back.  In  some  states  by  statute 
any  money  betted  or  staked  is  forfeit.  Ferguson  v.  Yunt,  13  S.  D.  120,  82  N. 
W.  509.  In  some  by  statute  a  stakeholder  on  notice  must  return  it.  Turner 
V.  Thompson,  107  Ky.  647,  55  S.  W,  210.  See  "Oaming,"  Dec.  Dig.  {Key-No.) 
§  26;   Gent.  Dig.  §§  IS,  57-61. 

4  4  Keasley  v.  Thomson,  24  Q.  B.  Div.  742;  Ullman  v.  Association,  1G7 
Mo.  273,  66  S.  W.  949,  56  L.  R.  A.  606 ;  Anson,  Cont.  (Sth  Ed.)  219.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  1S8;    Cent.  Dig.  §§  6S1-700. 

45  Herman  v.  Jenchner,  15  Q.  B.  Div.  561,  overruling  Wilson  v.  Stnignell, 
7  Q.  B.  Div.  548.  Otherwise  where  an  agreement  to  indemnify  the  signer 
of  a  bail  bond  against  loss  is  not  against  public  policy.  Maloney  v.  Nelson, 
12  App.  Div.  545,  42  N.  Y,  Supp.  418;  Moloney  v.  Same,  158  N.  Y.  351,  53  N. 
E.  31.     See  ''Contracts,"  Dec.  Dig.   {Key-No.)  §  138;    Cent.  Dig.  §§  681-700. 

48  In  re  Great  Britoin  Steamboat  Co.,  26  Ch.  Div.  616.  Seo  "Contracts," 
Dec  Dig.  (Key-No.)  |  138;   Cent.  Dig.  §§  681-700. 


428  ■  LEGALITY   OF   OBJECT  (Cll.  8 

Par  Delictum 

If  the  party  asking-  to  be  relieved  from  the  effect  of  an  illegal 
agreement  was  induced  to  enter  into  the  agreement  by  means  of 
fraud,  he  is  not  always  regarded  as  being  in  pari  delicto  with  the 
other  party,  and  the  court  may  relieve  him.  As  illustrating  this 
rule  is  a  case  in  which  a  party  sued  in  equity  to  set  aside  a 
conveyance  made  in  pursuance  of  an  agreement  which  was  illegal 
on  the  ground  of  champerty.  It  was  urged  that  the  parties  were 
in  pari  delicto,  but  the  court,  being  satisfied  that  the  plaintiff 
had  been  induced  to  enter  into  the  agreement  by  the  fraud  of  the 
defendant,  held  that  he  was  entitled  to  relief.  "Where  the  parties," 
it  was  said,  "to  a  contract  against  public  policy,  or  illegal,  are 
not  in  pari  delicto  (and  they  are  not  always  so),  and  where  public 
policy  is  considered  as  advanced  by  allowing  either,  or  at  least 
the  more  excusable  of  the  two,  to  sue  for  relief  against  the  trans- 
action, relief  is  given  to  him."  *'' 

So,  where  the  party  asking  relief  was  induced  to  enter  into  the 
agreement  under  the  influence  of  duress,  strong  pressure,  or  undue 
influence.*'  "This  is  not  a  case  of  par  delictum,"  it  was  said  by 
an  English  judge  in  reference  to  a  case  of  duress.  "It  is  oppres- 
sion on  one  side  and  submission  on  the  other.  It  never  can  be 
predicated  as  par  delictum,  when  one  holds  the  rod  and  the  other 

*T  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660.  See,  also,  Ford  t.  Harring- 
ton, 16  N.  Y.  285 ;  Roman  v.  Mali,  42  Md.  513 ;  Green  v.  Corrigan,  87  Mo. 
359;  Davidson  v.  Carter.  55  Iowa.  117,  7  N.  W.  466;  Bames  v.  Brown,  32 
Mich.  146;  Belding  v.  Smythe,  138  Mass.  530;  Hobbs  v.  Boatright,  195  Mo. 
693,  93  S.  W.  934,  5  L.  R.  A.  (N.  S.)  906,  and  note,  113  Am.  St.  Rep.  709; 
Stewart  v.  Wright,  147  Fed.  321,  77  C.  C.  A.  499 ;  Depue  v.  Swift  1904  Clothes 
Washer  Co.,  144  Mo.  App.  656,  129  S.  W.  230.  So  it  has  been  held  that 
money  paid  to  a  marriage  broker  may  be  recovered  by  the  party  who  paid 
it,  as  obtained  by  constructive  fraud;  and  that  she  will  not  be  regarded 
as  in  pari  delicto  with  him.  Duval  v.  Wellman,  124  N.  T.  156,  26  N.  E.  343 ; 
Wenniger  v.  Mitchell,  139  Mo.  App.  420,  122  S.  W.  1130.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  139;   Cent.  Dig.  §§  68^-700. 

* 8  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660;  Baehr  v.  Wolf,  59  111.  470; 
Richardson  v.  Crandall,  48  N.  Y.  348;  Tracy  v.  Talmage,  14  N.  Y.  162,  67 
Am.  Dec.  132;  Green  v.  Corrigan,  87  Mo.  359;  Roman  v.  Mali,  42  Md.  513; 
Curtis  V.  Leavitt,  15  N.  Y.  9 ;  Mount  v.  Waite,  7  Johns.  (N.  Y.)  434 ;  WHITE 
V.  BANK,  22  Pick.  (Mass.)  181,  Throckmorton  Cas.  Contracts,  298;  Bell  v. 
Campbell,  123  Mo.  1,  25  S.  W.  359,  45  Am.  St.  Rep.  505 ;  Woodham  y.  Allen. 
130  Cal.  194,  62  Pac.  398;  Gorringe  v.  Reed,  23  Utah,  120,  63  Pac.  902,  90 
Am.  St  Rep.  692;  Colby  v.  Title  Ins.  &  Trust  Co.,  160  Cal.  632,  117  Pac.  913, 
35  L.  R.  A-  (N.  S.)  813,  Ann.  Cas.  1913A,  515.  Though  a  mortgage  given  by 
a  father  to  prevent  the  prosecution  of  his  son  for  a  crime  is  illegal,  he  may 
sue  to  set  it  aside.  Having  executed  it  under  strong  pressure,  he  is  not  in 
pari  delicto  with  the  mortgagee.  Foley  v.  Greene,  14  R.  I.  618,  51  Am.  Rep. 
419.    See  "Contracts,"  Dec.  Dig.   (Key-No.)  §  1S9;    Cent.  Dig.  §§  6S4-700. 


§§    182-185)  EFFECT  OF  ILLEGALITY  429 

bows  to  it."  *•  In  a  case,  for  instance,  where  a  debtor  sued  to 
recover  an  additional  sum,  paid  by  him  to  one  of  his  creditors, 
in  fraud  of  the  others,  to  induce  the  former  to  agree  to  a  com- 
position, he  was  allowed  to  recover,  it  being  shown  that  the 
decision  of  several  other  creditors  depended  on  the  defendant's 
acceptance  or  rejection  of  the  offer  of  a  composition.  "It  is  said 
that  the  parties  are  in  pari  delicto,"  said  the  court.  "It  is  true 
that  both  are  in  delicto,  because  the  act  is  a  fraud  upon  the 
other  creditors;  but  it  is  not  par  delictum,  because  the  one  has 
power  to  dictate,  the  other  no  alternative  but  to  submit."  '*°  So, 
if  one  of  the  parties  in  the  execution  of  the  contract,  acted  in 
violation  of  law,  but  without  the  knowledge  of  the  other,  the 
contract  may  be  enforced  by  the  innocent  party ;  '^  as,  for  example, 
in  the  case  of  notes  or  other  contracts  executed  by  one  party  on 
Sunday,  where  the  other  party  did  not  know  they  had  been  exe- 
cuted on  that  day.**^ 

The  parties  are  not  to  be  regarded  as  being  in  pari  delicto  where 
the  agreement  is  merely  malum  prohibitum,  and  the  law  which 
makes  it  illegal  was  intended  for  the  protection  of  the  party 
asking  relief."  As  illustrating  this  rule  are  cases  in  which  banks 
or  other  corporations  are  prohibited  under  penalties  from  issuing 
bills  or  other  securities,  but  no  penalty  is   imposed   on   persons 

4»  Smith  V.  Cuff,  6  Maule  &  S.  160,  at  page  165.  See  "Contracts,"  Dec. 
Dig.   (Key-No.)  §  139;    Cent.  Dig.  §§  681,-700. 

6  0  Atkinson  v.  Deuby,  6  Hurl.  &  N.  778,  7  Hurl.  &  N.  934.  And  see  Solinger 
V.  Earle,  82  N.  Y.  393  ;  Crossley  v.  Moore,  40  N.  J,  Law,  27 ;  Brown  v.  Bverett- 
Ridley-Ragan  Co.,  Ill  Ga.  404,  36  S.  E.  813.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  1S8;    Cent.  Dig.  §§  68J,-700. 

51  Collins  V.  Collins,  139  Iowa,  703,  117  N.  W.  1089,  18  Ia  R.  A.  (N.  S.) 
1176,  16  Ann.  Cas.  630.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  139;  Cent. 
Dip.  §§  684-700. 

G  2  Collins  T.  Collins,  139  Iowa,  703,  U7  N.  W.  1089,  18  L.  R.  A.  (N.  S.) 
1176,  16  Ann.  Cas.  630.  See  "Sunday,"  Dec.  Dig.  (Key-No.)  §  11;  Cent.  Dig. 
S§  SO-SJ,. 

5  3  In  Bowditch  v.  Insurance  Co.,  141  Mass.  292,  4  N.  B.  798,  55  Am.  Rep. 
474,  it  was  held  that  a  statute  providing  that  "no  member  of  a  committee  or 
officer  of  a  domestic  insurance  company,  who  is  charged  with  the  duty  of 
investing  its  funds,  shall  borrow  the  same,"  was  Intended  to  protect  the  com- 
pany and  policy  holders  from  the  dishonesty  or  self-interest  of  the  officers, 
and  did  not  render  a  loan  to  an  officer  illegal,  so  as  to  prevent  the  company 
from  recovering  on  his  promise  to  repay.  And  see  "WHITE  v.  BANK,  22 
Pick.  (Mass.)  181,  Throckmorton  Cas.  Contracts,  298;  President,  etc.,  of  Atlas 
Bank  v.  President,  etc.,  3  Mete.  (Mass.)  581;  Parkersburg  v.  Brown,  106 
U.  S.  487,  1  Sup.  Ct.  442,  27  L.  Ed.  238;  Browning  v.  Morris,  2  Cowp.  790; 
Smith  T.  Bromley,  2  Doug.  690 ;  Clarke  v.  Lumber  Co.,  59  Wis.  655,  18  N. 
W.  492;  Mason  v.  McLeod,  r,7  Kan.  105,  45  Pac.  76,  41  L.  R.  A.  548,  57  Am. 
St  Rep.  327.  See  "Contracts,"  Deo.  Dig.  (Key-No.)  i  139;  Cent.  Dig.  U 
684-700. 


430  LEGALITY   OF  OBJECT  (Ch.  8 

who  receive  the  illegal  securities.  In  such  cases  it  is  held  that 
the  law  creating  the  illegality  is  to  protect  the  public  against 
the  prohibited  securities,  that  the  corporation  issuing  them  is 
the  only  offender,  and  that  persons  who  receive  them  may  recover 
the  money  paid  for  them.  They  are  not  in  pari  delicto.  "The 
corporation  issuing  the  bills  contrary  to  law  and  against  penal 
sanctions  is  deemed  more  guilty  than  the  members  of  the  com- 
munity who  receive  them,  whenever  the  receiving  of  them  is  not 
expressly  prohibited.  The  latter  are  regarded  as  the  persons 
intended  to  be  protected  by  the  law ;  and,  if  they  have  not  them- 
selves violated  an  express  law  in  receiving  the  bills,  the  principles 
of  justice  require  that  they  should  be  able  to  recover  the  money 
received  by  the  bank  for  them."  '* 

If  a  broker  or  other  agent  is  employed  to  carry  out  an  illegal 
transaction,  and  is  privy  to  the  unlawful  design,  and  by  virtue 
of  his  employment  performs  services,  makes  disbursements,  suf- 
fers losses,  or  incurs  liabilities,  he  has  no  remedy  against  his 
principal, ''^  Not  only  is  this  true,  but  it  has  been  held  that  any 
express  promise  made  by  the  principal  to  reimburse  him  is  void.^^ 
This,  of  course,  does  not  apply  where  a  broker  is  employed  to 

B4  Thomas  v.  City  of  Richmond,  12  Wall.  349,  20  L.  Ed.  453;  Oneida  Bank 
Y.  Bank,  21  N.  Y.  490;  Smith  v.  Bromley,  2  Doug.  696.  And  see  Herring 
V.  Cumberland  Lumber  Co.,  159  N.  C.  382,  74  S,  E,  1011,  42  L.  R,  A.  (N,  S.) 
64.  Where  a  statute  commands  certain  parties  to  do  or  prohibits  them  from 
doing  certain  acts,  and  prescribes  penalties  for  their  violation  of  its  com- 
mands, the  court  may  not  inflict  other  penalties  for  its  violation  on  other 
parties  not  named  in  the  law  by  avoidance  of  their  contracts.  Hanover  Nat. 
Bank  V.  Bank,  109  Fed.  421,  48  C.  C.  A.  4S2.  See  ''Contracts"  Dec.  Dig.  (Key- 
No.)  §  139;   Cent.  Dig.  §§  6S4-700. 

ssGreenh.  Pub.  Pol.  110  (collecting  the  cases);  Harvey  v.  Merrill,  150 
Mass.  1,  22  N.  E.  49,  5  L,  R.  A.  200,  15  Am.  St.  Rep.  159 ;  Foss  v.  Cummings. 
149  111.  353,  36  N.  E.  553;  Kirkpatrick  v.  Adams  (C.  C.)  20  Fed.  287;  Gibbs 
v.  Gas  Co..  130  U.  S.  396,  9  Sup.  Ct.  553.  32  L.  Ed.  979;  Hooker  v.  Knab, 
26  Wis.  511;  Gregory  v.  Wendell,  39  Mich.  337,  33  Am.  Rep.  390;  Fareira 
V.  Gabell,  89  Pa.  89;  Cunningham  v.  Bank.  71  Ga.  400,  51  Am.  Rep.  266; 
Stewart  v.  Schall,  65  Md.  308,  4  Atl.  399,  57  Am.  Rep.  327;  Whitesides  v. 
Hunt,  97  Ind.  191,  49  Am.  Rep.  441;  Colderwood  v.  McCrea,  11  111.  543; 
Connor  v.  Black,  119  Mo.  126,  24  S.  W.  184;  Samuels  v.  Oliver,  130  111.  73, 
22  N.  E.  499;  Jamleson  v.  Wallace,  167  111.  388,  47  N.  E.  762,  59  Am.  St. 
Rep.  302;  Rogers  v.  Marriott,  59  Neb.  759,  82  N.  W.  21.  See,  also,  Bibb  v. 
Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819 ;  Tiffany,  Ag.  459.  See 
''Contracts,"  Dec.  Dig.  (Key-No.)  §  ISS;   Cent.  Dig.  §§  681-100. 

56  Everingham  v.  Meighan,  55  Wis.  354,  13  N.  W.  269;  Embrey  T.  Jemi- 
son,  131  U.  S.  336,  9  Sup.  Ct  776.  33  L.  Ed.  172;  Kahn  v.  Walton,  46  Ohio 
St.  195,  20  N.  E.  203 ;  Smith  v.  David  B.  Crockett  Co.,  85  Conn.  282.  82  Atl. 
569,  39  L.  R.  A.  (N.  S.)  1148  (contract  vrith  salesman  contemplating  the 
bribing  of  purchasing  agents).  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  13S; 
Cent.  Dig.  §§  681-700. 


§§    182-185)  EFFECT  OF  ILLEGALITY  431 

make  contracts  the  illegality  of  which  depends  on  the  intention 
of  his  principal,  and  the  broker  is  not  aware  of  such  intent;  as, 
for  instance,  where  a  stock  or  grain  broker  is  employed  to  sell 
stock  or  grain  on  the  exchange  for  future  delivery,  and  he  is 
not  aware  of  the  fact  that  his  principal  intends,  not  an  actual 
sale  and  delivery,  but  a  mere  gambling  on  the  rise  and  fall  of 
prices.^^  But  where  money  or  property  is  delivered  by  a  principal 
to  an  agent  for  the  purpose  of  executing  an  illegal  contract,  such 
money  or  property  may  be  recovered  by  the  principal  from  the 
agent  so  long  as  it  remains  in  the  latter's  hands."' 

Recovery  upon  Quantum  Meruit 

Where  money  is  paid,  goods  are  sold,  or  services  rendered,  under 
a  contract  merely  void,  but  not  illegal,  an  implied  assumpsit  lies 
for  the  money  paid,  or  for  the  value  of  the  goods  sold  or  services 
rendered;  but  where  the  contract  is  illegal  because  contrary  to 
positive  law  or  against  public  policy,  an  action  does  not  lie  to 
recover  the  money  paid  on  it,  or  the  value  of  the  goods  sold  or 
services  rendered  under  it/*     To  permit  a  recovery  upon  a  quan- 

6  7  Rountree  v.  Smith,  108  U.  S.  209,  2  Sup.  Ct  630,  27  L.  Ed.  722;  Irwin 
V.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  IGO,  28  L.  Ed.  225;  Edwards  v.  Hoef- 
finghoff  (C.  C.)  38  Fed.  635;  Lehman  v.  Feld  (C.  C.)  37  Fed.  852;  Boyd  v. 
Hanson  (C.  C.)  41  Fed.  174;  Pape  v.  Wright,  116  Ind.  502,  19  N.  E.  450; 
Mohr  V.  Miesen,  47  Minn.  228,  49  N.  W.  862;  Bartlett  v.  Collins,  109  Wis. 
477,  85  N.  W.  703,  83  Am,  St.  Rep.  928.  A  mere  expectation  on  the  part  of 
the  principal  and  broker,  in  sales  for  future  delivery,  that  purchasers  from 
the  principal  may  be  willing  to  adjust  the  transactions  by  paying  or  re- 
ceiving differences,  when  there  is  no  agreement  to  that  effect,  does  not 
render  the  contract  illegal.  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403 ; 
ante,  p.  344.  In  England,  where  gaming  and  wagering  contracts  are  held  not 
illegal  at  common  law,  but  were  by  statute  rendered  null  and  void,  but  not 
illegal,  money  paid  by  an  agent  in  pursuance  of  such  a  contract  was  recov- 
erable'from  his  principal.  Thacher  v.  Hardy,  4  Q.  B.  D.  685.  And  see  Read 
V.  Anderson,  13  Q.  B.  D.  779;  Seymour  v.  Bridges,  14  Q.  B.  D.  460;  Knight 
V.  Lee,  [1893]  1  Q.  B.  D.  41.  This  has  since  been  changed  by  statute.  Tatam 
V.  Reeve,  [1893]  1  Q.  B,  44.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  13S;  Cent. 
Dig.  §§  681-700. 

oscheuvront  v.  Horner,  62  W.  Va.  476,  59  S.  E.  964;    Hertzler  v.  Geigley, 

196  Pa.  419,   46  Atl.  366,  79  Am.   St.  Rep.   724;     Ware  v.   Spinney,  76  Kan. 

289,  91  Pac.  787,  13  L.  R.  A.  (N.  S.)  267,  13  Ann.  Cas.  1181.     See  "Contracts," 

Dec.  Dig.   (Key-No.)   §  J38;    Cent.  Dig.   §§  681-100;    "Intoxicating  Liquors," 

■  Dec.  Dig.   (Key-No.)  §  S27 ;   Cent.  Dig.  §§  467-Jt7S. 

6  9  Roller  v.  Murray,  112  Va.  780,  72  S.  E.  665,  38  L.  R.  A.  (N.  S.)  1202, 
Ann.  Cas.  1913B,  1088;  Cole  v.  Brown-Hurley  Hardware  Co.,  139  Iowa,  487, 
117  N.  W.  746,  18  L.  R.  A.  (N.  S.)  1161,  16  Ann.  Cas.  846.  But  see  White 
Star  Line  v.  Star  Line  of  Steamers,  141  Mich.  604,  105  N.  W.  135,  113  Am. 
St.  Rep.  551,  allowing  a  recovery  upon  a  quantum  meruit  for  benefits  actual- 
ly received  upon  disafTirmlng  the  illegal  contract  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  138;  Cent.  Dig.  §  608. 


432  LEGALITY   OF   OBJECT  (Ch.  8 

turn  meruit  or  quantum  valebant  for  benefits  received  under  an  il- 
legal contract  would  result  in  the  indirect  enforcement  of  the  con- 
tract itself,  and,  to  a  large  extent  at  least,  would  relieve  it  of  any 
odium  or  inconvenience,  whereas  it  is  the  policy  of  the  law  to  dis- 
courage the  making  of  illegal  agreements.*"* 


CONFLICT  OF  LAWS 

186.  IN  SPACE.     The  validity  of  a  contract  is  as  a  rule  determin- 

ed by  the  law  of  the  place  where  it  is  made,  but  if  it  is  to 
be  performed  in  some  other  place  its  validity  is  as  a  rule 
determined  by  the  law  of  that  place. 
EXCEPTION — A  contract  will  not  be  enforced  where  to  enforce 
it  would  be  injurious  to  the  interest  of  the  state  or  country 
where  it  is  sought  to  be  enforced,  or  of  its  citizens. 

187.  IN  TIME.     An  agreement  which  is  illegal  when  made  is  not 

rendered  valid  by  subsequent  legislation.  On  the  other 
hand  a  change  in  the  law  cannot  render  illegal  an  agree- 
ment which  was  legal  when  made,  though  it  may  render 
further  performance  impossible,  and  operate  as  a  dis- 
charge. 

As  a  general  rule,  subject  to  exceptions  which  we  will  notice 
briefly,  the  legality  of  a  contract  is  to  be  determined  by  the  law  of 
the  place  where  it  is  made  and  is  to  be  performed.  If  it  is  valid 
there  it  is  valid  everywhere.  "This  rule  is  founded  on  the  tacit 
consent  of  civilized  nations,  arising  from  its  general  utility,  and 
seems  to  be  a  part  of  the  law  of  nations  adopted  by  the  common 
law."  "^    A  sale  of  goods,  for  instance,  made  and  completed  by  de- 

«o  Roller  V.  Murray,  112  Va.  70S,  72  S.  E.  665,  38  L.  R.  A.  (N.  S.)  1202,  Ann. 
Cas.  1913B,  1088.  See  post,  p.  650.  Bee  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
138;   Cent.  Dig.  §§  681-700. 

61  Pearsall  v.  Dwiglit,  2  Mass.,  at  page  89,  3  Am.  Dec.  35.  And  see  An- 
drews v.  Herriot,  4  Cow.  (N.  Y.)  508,  note  (where  the  earlier  cases  are  col- 
lected) ;  Ward  r.  Vosburgh  (C.  C.)  31  Fed.  12;  Brown  v.  Finance  Co.  (C.  C.) 
31  Fed.  516;  Sullivan  v.  Sullivan,  70  Mich.  583,  38  N.  W.  472;  Western  & 
A.  R.  Co.  V.  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916,  2  L.  R.  A.  102 ;  Fessenden 
V.  Taft,  65  N.  H.  39,  17  Atl.  713;  Central  Trust  Co.  v.  Burton,  74  Wis.  329. 
43  N.  W.  141;  Appeal  of  Fowler,  125  Pa.  388,  17  Atl.  431,  11  Am.  St.  Rep 
902;  Atlantic  Phosphate  Co.  v.  Ely,  82  Ga.  438,  9  S.  B.  170;  Fairchild  v, 
Railroad  Co.,  148  Pa.  527,  24  Atl.  79;  Fonseca  t.  Steamship  Co.,  153  Mass. 
553,  27  N.  E.  665,  12  L.  R.  A.  340,  25  Am.  St.  Rep.  660 ;  O'Regan  v.  Steam- 
Bhip  Co.,  160  Mass.  356,  35  N.  E.  1070,  39  Am.  St.  Rep.  484;  Thompson  r. 
Taylor,  66  N.  J.  Law,  253,  49  Atl.  544,  54  L.  R.  A.  585,  88  Am.  St  Rep.  485; 
Intel-national  Harvester  Co.  of  America  v.  McAdam,  142  Wis.  114,  124  N.  W. 


§§    186-187)  CONFLICT   OF    LAWS  433 

livery  in  one  state,  where  it  is  valid,  will  be  enforced  in  another 
state,  though  it  would  have  been  invalid  if  made  in  the  latter  state.*" 
A  note  executed  in  one  state  and  free  from  usury  under  its  laws  is 
valid  in  another  state,  although  if  made  in  the  latter  state  it  would 
have  been  usurious  and  void.®^  A  marriage,  also,  though  strictly 
not  a  contract,  is  governed  by  the  same  principle.  If  valid  where  it 
is  executed,  it  is  valid  everywhere.'*  On  the  other  hand,  a  contract 
which  is  invalid  where  it  is  made  and  is  to  be  performed  is  invalid 
everywhere.^'  A  note,  for  instance,  which  is  void  for  usury  in  the 
state  where  it  is  executed,  is  void  in  another  state,  though,  if  made 
in  the  latter,  it  would  have  been  valid." 

1042,  26  L.  R.  A.  (N.  S.)  774,  20  Ann.  Cas.  614  (containing  full  discussion  of 
rules).  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  2,  101;  Cent.  Dig.  §§  2,  Ifl, 
145,  455-460;  "Sales,"  Dec.  Dig.  (Key-No.)  §  2;  Cent.  Dig.  §  2;  "Vendor 
and  Purchaser,  Dec.  Dig.  (Key-No.)  §  2;    Cent.  Dig.  §  2. 

6  2  Greenwood  v.  Curtis,  6  Mass.  377,  4  Am.  D4c.  145;  Grant  v.  McLachlin, 
4  Johns.  (N.  Y.)  34;  Braun  v.  Keally,  146  Pa.  519,  23  Atl.  8S9,  28  Am.  St. 
Rep.  811 ;  Drinker  v.  Scheunemann,  43  111.  App.  659 ;  Dame  v.  Flint,  64  Vt. 
533,  24  Atl.  1051 ;  Claflin  v.  Meyer,  41  La.  Ann.  1048,  7  South.  139 ;  Kerwin 
V.  Doran,  29  Mo.  App.  397;  Wagner  v.  Breed,  29  Neb.  720,  46  N.  W,  286. 
See  "Sales,"  Dec.  Dig.  (Key-No.)  §  2;    Cent.  Dig.  §  2. 

68  Brown  v.  Finance  Co.  (C.  C.)  31  Fed.  51G;  Matthews  t.  Paine,  47  Ark. 
64,  14  S.  W.  463;  Van  Vleet  v.  Sledge  (C.  C.)  45  Fed.  743;  Mott  v.  Rowland. 
85  Mich.  561,  48  N.  W.  638;  Staples  v.  Nott,  128  N.  Y.  403.  28  N.  E.  515,  26 
Am.  St.  Rep.  480;  Buchanan  v.  Bank,  55  Fed.  223,  5  C.  C.  A.  83.  Note  on 
gaming  consideration,  valid  where  it  was  made  and  the  transaction  took  place, 
is  enforceable  in  a  state  under  whose  laws  it  would  have  been  void.  Sond- 
heim  v.  Gilbert,  117  Ind.  71,  18  N.  E.  687,  5  L.  R.  A.  432,  10  Am.  St.  Rep. 
23.  Dealings  in  futures.  Ward  v.  "Vosburgh  (C.  C.)  31  Fed.  12;  Lehman  v. 
Feld,  87  Fed.  852.  Sunday  contract.  McKee  v.  Jones,  67  Miss.  405,  7  South. 
348;  Arbuckle  v.  Reaume,  96  Mich.  243,  55  N.  W.  808;  Adams  v.  Gay,  19 
Vt.  358;  Swann  v.  Swann  (C.  C.)  21  Fed.  299;  Brown  v.  Browning,  15  R.  I. 
422.  7  Atl.  403,  2  Am.  St.  Rep.  908 ;  O'Rourke  v.  O'Rourke,  43  Mich.  58,  4  N. 
W.  531.     See  "Usury,"  Dec.  Dig.  (Key-No.)  §  2;    Cent.  Dig.  §§  2-15,  418. 

6*  Com.  V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509;  Sutton  t.  Warren,  10 
Mete.  (Mass.)  451;  Scrimshire  v.  Scrimshire, _ 2  Hagg.  Const.  395;  Ilderton 
V.  Ilderton,  2  H.  Bl.  145 ;  Inhabitants  of  West  Cambridge  v.  Inhabitants  of 
Lexington,  1  Pick.  (Mass.)  507,  11  Am.  Dec.  231 ;  Thorp  v.  Thorp,  90  N. 
Y.  602.  43  Am.  Rep.  189;  Jackson  v.  Jackson,  82  Md.  17,  3S  Atl.  137,  34  L. 
R.  A.  773.  Cf.  In  re  Stall's  Estate,  183  Pa.  625,  39  Atl.  16,  39  L.  R.  A.  539. 
63  Am.  St.  Rep.  776 ;  McLennan  v.  McLennan,  31  Or.  480,  50  Pac.  802,  38  L. 
R.  A.  8&3,  65  Am.  St  Rep.  835.  See  "Marriage,"  Dec.  Dig.  (Key-No.)  §  2: 
Cent.  Dig.  §§  S,  23. 

«6  Corn  Exch.  Nat  Bank  v.  Jansen,  70  Neb.  579,  97  N.  W.  814  (holding  that 
suit  may  not  be  brought  in  foreign  jurisdiction  on  instrument  by  which  the 
contract  is  evidenced).  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  101;  Cent. 
Dig.  §§  4rj.5-4GO. 

60  A'an  Schaick  v.  Edwards.  2  Johns.  Cas.  (N.  Y.)  3."5 ;  Mattbews  v.  Paine, 
47  Ark.  54,  14  S.  W.  463;  Meroney  v.  A.ssociation,  112  N.  C.  842,  17  S.  E. 
637.    Note  void  for  gaming  in  France,  where  it  is  made,  is  void  in  England. 

Ci.ABK  Coivt.(3d  En.) — 28 


434  LEGALITY   OF   OBJECT  (Ch.  8 

The  rule  that  a  contract  which  is  valid  where  it  is  made  a*nd  is  to 
be  performed  is  valid  everywhere  is  subject  to  exceptions.  No  state 
is  bound  to  recognize  and  enforce  a  contract  which  is  injurious  to 
its  own  interests,  or  to  the  interests  of  its  citizens,  or  that  contra- 
venes the  established  public  policy  of  the  state."  "This  exception 
results  from  the  consideration  that  the  authority  of  the  acts  and 
contracts  done  in  other  states,  as  well  as  the  laws  by  which  they 
are  regulated,  are  not,  proprio  vigore,  of  any  efificacy  beyond  the 
territories  of  that  state ;  and  whatever  effect  is  attributed  to  them 
elsewhere  is  from  comity,  and  not  of  strict  right.  And  every  inde- 
pendent community  will  and  ought  to  judge  for  itself  how  far  that 
comity  ought  to  extend.  The  reasonable  limitation  is  that  it  shall 
not  suffer  prejudice  by  its  comity.  *  *  *  Contracts,  therefore, 
which  are  in  evasion  or  fraud  of  the  laws  of  a  country,  or  of  the 
rights  or  duties  of  its  subjects;  contracts  against  good  morals,  or 
against  religion,  or  against  public  rights ;  and  contracts  opposed  to 
the  national  policy  or  national  institutions, — are  deemed  nullities  in 
every  country  affected  by  such  considerations,  although  they  may 
be  valid  by  the  laws  of  the  place  where  they  are  made."  "    To  il- 

Robinson  v.  Bland,  2  Burrows,  1077.  And  see,  for  other  cases,  Touro  v. 
Cassin,  1  Nott  &  McC.  (S.  C.)  173,  9  Am.  Dec.  680;  Tolman  Co.  v.  Reed, 
115  Mich.  71,  72  N.  W.  1104;  Washington  Nat.  Building,  Loan  &  Inv.  Co. 
V.  Stanley,  38  Or.  319,  63  Pac.  489,  58  L.  R.  A.  816,  84  Am.  St.  Rep.  793; 
Alexander  v.  Barker,  64  Kan.  390,  67  Pac.  829.  Sale  made  in  another  state 
in  violation  of  its  liqiior  laws.  Tredway  v.  Riley,  32  Neb.  495,  49  N.  W.  208, 
29  Am.  St.  Rep.  447 ;  Wind  v.  Her.  93  Iowa,  316;  61  N.  W.  1001,  27  L.  R.  A. 
219.  Stipulation  relieving  carrier  from  liability.  Brockway  v.  Express  Co., 
168  Mass,  257,  47  N.  E.  87.  See  ''Bills  and  Notes,"  Dec.  Dig.  {Key-No.)  §  99; 
Cent.  Dig.  §  21S ;    "Usury,"  Dec.  Dig.  (Key-No.)   §  2;    Cent.  Dig.  §§  2-15,  1,18. 

6T  Williamson  v.  Postal  Telegraph  Co.,  151  N.  C.  223,  65  S.  E.  974,  where 
it  is  said  by  Clark,  C.  J.:  "To  this  rule,  however,  there  are  well-known  ex- 
ceptions, as  follows:  First,  when  the  contract  is  contrary  to  good  morals; 
second,  when  the  state  of  the  forum,  or  its  citizens,  would  be  injured  by  the 
enforcement  by  its  courts  of  contracts  of  the  kind  In  question;  third,  when 
the  contract  violates  tfte  positive  legislation  of  the  state  of  the  forum,  that 
is,  contrary  to  its  constitution  or  statute;  and,  fourth,  when  the  contract  vio- 
lates the  public  policy  of  the  state  of  the  forum."  And  see  Burrus  v.  Wit- 
cover,  158  N.  C.  384,  74  S.  E.  11,  39  L.  R.  A.  (N.  S.)  1005.  refusing  to  en- 
force a  gambling  contract  made  in  another  state  and  valid  there.  See  ''Con- 
tracts:' Dec.  Dig.  (Ketj-No.)  §  101;   Cent.  Dig.  §§  //.55-460. 

88  Story  Confl.  Law,  §  244;  Randall  v.  Protective  Union,  43  Neb.  876,  62 
N.  W.  252.  And  see  Greenwood  v.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145; 
Davis  v.  Bronson,  6  Iowa,  410;  Kentucky  v.  Bassford,  6  Hill  (N.  Y.)  526; 
Territt  v.  Bartlett,  21  Vt.  189 ;  Blanchard  v.  Russell,  13  Mass.  6,  7  Am.  Dec. 
106;  In  re  Dalpay,  41  Minn.  532,  43  N.  W.  564,  6  L.  R.  A.  108,  16  Am.  St.  Rep. 
729;  Savings  Bank  of  Kansas  v.  Bank  (C.  C.)  38  Fed.  800;  Kilcrease  v. 
Johnson,  85  Ga.  000,  11  S.  E.  870 ;  Armstrong  y.  Best,  112  N.  C.  59,  17  S.  E. 
14,  25  L.  R.  A.  188,  34  Am.  St  Rep.  473.     See,  also,  Oscanyan  v.  Arms  Co., 


§§    186-187)  CONFLICT   OF   LAWS  435 

lustrate  this  exception,  a  contract  made  in  one  country  to  smuggle 
goods  into  another  in  violation  of  its  laws  will  not  be  enforced  in 
the  latter  country.^*  So  also  a  sale  of  intoxicating  liquors  or  other 
goods  in  one  state  will  not  be  enforced  in  another  state,  where  the 
intention  of  both  parties  was  to  import  the  goods  into  the  latter 
state,  and  sell  them  in  violation  of  its  laws/**  So  of  contracts  made 
in  a  foreign  country  for  future  illicit  cohabitation  and  prostitu- 
tion;"^ and  contracts  made  in  another  state  or  nation  limiting  the 
liability  of  common  carriers  ^*  or  other  public  service  corporations,^^ 
where  such  contracts  are  contrary  to  the  public  policy  of  the  state 
of  the  forum. 

An  exception  to  the  rule  that  contracts  which  are  invalid  where 

103  U.  S.  261,  26  L.  Ed.  539.  A  contract  made  in  another  state,  though  valid 
there,  will  not  be  enforced  if  it  is  opposed  to  the  public  policy  of  the  state 
of  the  fonuu.  The  Kensington,  183  U.  S.  2G3,  22  Sup.  Ct.  102,  46  L.  Ed.  190; 
Seamans  v.  Temple  Co.,  105  Mich.  400,  63  N.  W.  408,  28  L.  R.  A.  430,  55 
Am.  St  Rep.  457 ;  Thompson  v.  Taylor,  65  N.  J.  Law,  107,  46  Atl.  567 ;  Bart- 
lett  V.  Collins.  109  Wis.  477,  85  N.  W.  703,  83  Am.  St.  Rep.  928;  Gooch  v. 
Faucett,  122  N,  C.  270,  29  S.  E.  362,  39  L.  R.  A.  835;  Winward  v.  Lincoln, 
■23  R.  I.  476,  51  Atl.  106,  64  L.  R.  A.  160;  Welling  v.  Association,  56  S.  C. 
280,  34  S.  E.  409 ;  Parker  v.  Moore,  115  Fed.  799,  53  C.  C.  A.  369 ;  St.  Louis 
Southwestern  Ry.  Co.  of  Texas  v.  Mclntyre,  36  Tex.  Civ.  App.  399,  82  S.  W. 
346.  But  enforcement  will  not  be  refused  merely  because  the  contract  would 
not  have  been  valid  if  made  in  the  state  of  the  forum.  Fonseca  v.  Steamship 
Co.,  153  Mass.  553,  27  N.  E.  665,  12  L.  R.  A.  340,  25  Am.  St.  Rep.  660;  O'Regan 
V.  Same,  160  Mass.  356,  35  N.  E.  1070,  39  Am.  St  Rep.  484;  Internationa  1 
Harvester  Co.  of  America  v.  McAdam,  142  Wis.  114,  124  N.  W.  1042,  26  L. 
R.  A.  (N.  S.)  774,  20  Ann.  Cas.  614;  The  Fri,  154  F.  333,  83  C.  C.  A.  205. 
See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  101;  Cent.  Dig.  §§  455-^60. 

8  8  Armstrong  v.  Toler,  11  Wheat  258,  6  L.  Ed.  468;  Holman  r.  Johnson, 
Cowp.  341.  See,  also,  ante,  p.  414.  Bee  "Contracts"  Dec.  Dig.  (Key-No.)  § 
101;    Cent.  Dig.  §§  455~460. 

7  0  Aiken  v.  Blaisdell,  41  Vt  655;  Banchor  v.  Mansel,  47  Me,  58;,  Webster 
V.  Munger,  8  Gray  (Mass.)  584 ;  Davis  v.  Bronson,  6  Iowa,  410.  Or  even  in 
the  state 'where  the  sale  was  made.  GRAVES  v.  JOHNSON,  156  Mass.  211, 
30  N.  E.  818,  15  L.  R.  A.  834,  3  Am.  St  Rep.  446,  Throckmorton  Cas.  Con- 
tracts, 294.  See  "Intoxicating  Liquors,"  Dec.  Dig.  (Key-No.)  §  S26;  Cent. 
Dig.  §  J,69. 

7 1  Walker  v.  Perkins,  3  Burrows,  1568 ;  Jones  v.  Randall,  Cowp.  37 ;  De 
Sobry  v.  De  Laistre,  2  Har.  &  J.  (Md.)  at  page  228,  3  Am.  Dec.  535;  Robin- 
son V.  Bland,  2  Burrows,  1084.  Marriage  valid  where  entered  into,  but  in- 
cestuous in  Pennsylvania,  will  not  be  there  recognized.  U.  S.  v.  Rodgers  (D. 
C.)  109  Fed.  886.  See  "Marriage,"  Dec.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  §§ 
S,  23. 

T2  The  Kensington,  183  U.  S.  263,  22  Sup.  Ct  102,  46  L.  Ed.  190;  Carstens 
Packing  Co.  v.  Southern  Pac.  Co.,  58  Wash.  239,  108  Paa  613,  27  L.  R.  A. 
(N.  S.)  975.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  |  101;  Cent.  Dig.  §§  J/'jo- 
JtGO. 

■">  Williamson  v.  Postal  Telegraph  Co..  151  N.  C.  223,  65  S.  B.  974.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  t  101;    Cent.  Dig.  §§  4J5-460. 


136  LEGALITY  OF   OBJECT  (Ch.  8 

they  are  made  are  invalid  everywhere  is  in  the  case  of  contracts 
violating  the  revenue  laws.  It  seems  to  have  been  an  established 
doctrine  of  the  common  law  that  a  nation  will  not  recognize  or  en- 
force the  revenue  laws  of  another  country,  and  that  the  contracts  of 
its  own  subjects,  made  to  evade  or  defraud  the  revenue  laws  of  for- 
eign nations,  may  be  enforced  in  its  own  courts.''*  This  doctrine 
has  been  deprecated  by  eminent  judges  and  lawyers,  and  the  later 
cases  have  shown  a  tendency  to  hold  the  contrary/' 

The  rule  stated  at  the  beginning  of  this  paragraph  only  applies,  it 
will  be  noticed,  where  the  contract  is  to  be  performed  where  it  is 
made.  Where  it  is  either  expressly  or  by  implication  to  be  per- 
formed at  some  other  place,  "there  the  general  rule  is  in  conformity 
to  the  presumed  intention  of  the  parties  that  the  contract,  as  to  its 
validity,  *  *  *  is  to  be  governed  by  the  law  of  the  place  of 
performance,"  " 

Change  of  Law 

An  agreement  which  is  illegal  and  void  at  the  time  of  its  incep- 
tion cannot  be  rendered  valid  by  subsequent  legislation;^^  nor,  on 

T*  Story,  Confl.  Law,  §§  245,  256,  257;  Boucher  v.  Lawson,  Cas.  t.  Hardw. 
84,  89,  191 ;  Holman  v.  Johnson,  Cowp.  341 ;  Ludlow  v.  Van  Rensselaer,  1 
Johns.  (N.  Y.)  94.  See  "Courts,"  Dec.  Dig.  (Key-No.)  §§  511,  512;  Cent.  Dig. 
§  1J,S2;    "Contracts,"  Dec.  Dig.  {Key-No.)  §  101;    Cent.  Dig.  §§  455-.i60. 

TB  Story,  Confl.  Law,  §§  245,  256,  257.  A  bill  or  note  void  for  want  of  a 
stamp  Is  void  everywhere,  though,  If  the  stamp  is  merely  a  condition  of  its 
admissibility  in  evidence,  this  will  have  no  effect  outside  the  jurisdiction. 
Alves  V.  Hodgson,  7  T.  R.  241;  Bristow  v.  Sequeville,  5  Ex.  275;  Fant  v. 
Miller,  17  Grat.  (Va.)  47.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  101;  Cent. 
Dig.  §§  455-460. 

7  6  Story,  Confl.  Law,  §  280;  Andrews  v.  Pond,  13  Pet.  65,  10  L.  Ed.  61; 
Frazier  v.  Warfield,  9  Smedes  &  M.  (Mi.ss.)  220;  Thayer  v.  Elliott,  16  N.  H. 
104;  First  Nat.-  Bank  v.  Hall  (Pa.)  24  Atl.  665,  30  Am.  St.  Rep.  823;  Liver- 
pool &  G.  W.  Steam  Co.  v.  Insurance  Co.,  129  U.  S.  397.  9  Sup.  Ct.  4G9,  32 
L.  Ed.  788.  That  a  note  is  governed  by  the  law  of  the  place  where  it  is  pay- 
able, see  Stevens  v.  Gregg,  89  Ky.  461,  12  S.  W.  775;  Tenant  v.  Tenant,  110 
Pa.  478,  1  Atl.  532 ;  Barrett  v.  Dodge,  16  R.  I.  740,  19  Atl.  530,  27  Am.  St.  Rep. 
777 ;  Bigelow  v.  Burnham,  83  Iowa,  120,  49  N.  W.  104,  32  Am.  St.  Rep.  294 ; 
Bennett  v.  Eastern  Building  &  Loan  Ass'n,  177  Pa.  233,  35  Atl.  684,  34  L.  R. 
A.  595,  55  Am.  St  Rep.  723 ;  Building  &  Loan  Ass'n  of  Dakota  v.  Logan,  66 
Fed.  827,  14  C.  C.  A.  133;  Hieronymus  v.  Association  (C.  C.)  101  Fed.  12; 
Western  Union  Telegraph  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A. 
(N.  S.)  648,  19  Ann.  Cas.  1058;  Southern  Express  Co.  v.  Gibbs,  155  Ala  303, 
46  South.  465,  18  L.  R.  A.  (N.  S.)  874,  130  Am.  St  Rep.  24  [cit  Clark  on  Con- 
tracts (1st  Ed.)  507];  Zeratello  v.  Hammerstein,  231  Pa.  56,  79  Atl.  922. 
Contract  to  be  performed  partly  in  state  where  made  and  partly  elsewhere. 
Bartlett  v.  Collins,  109  Wis.  477,  85  N.  W.  703,  83  Am.  St  Rep.  92a  See 
"Contracts;'  Dec.  Dig.   (Key-No.)   §  101;    Cent.  Dig.  §§  455-460. 

■n  HANDY  v.  ST.  PAUI/  GLOBE  PUB.  CO.,  41  Minn.  188,  42  N.  W.  872. 
4   L.   R.  A.  466,   16  Am.   St   Rep.   695,  Throckmorton  Cas.   Contracts,  227; 


§§    186-187)  CONFLICT  OF  L4iW3  437 

the  other  hand,  can  a  change  of  the  law  render  invalid  a  contract 
which  was  valid  when  made.'"  Where,  however,  performance  of 
a  contract  lawful  in  its  inception  is  made  unlawful  by  any  subse- 
quent legislation  or  event,  the  contract  is  thereby  dissolved,  unless 
the  statute,  to  have  this  effect,  would  be  unconstitutional,  as  impair- 
ing the  obligation  of  contract.^'  So  a  covenant  not  to  do  a  lawful 
thing  is  repealed  by  the  subsequent  passage  of  a  statute  compelling 
it  to  be  done.'" 

Puckett  V.  Alexander,  102  N.  C.  9.5,  8  S.  E.  767,  3  L.  R.  A.  43 ;  Mays  v.  Wil- 
liams. 27  Ala.  267.  Repeal  of  law  does  not  validate  prior  invalid  contract. 
Hathaway  v.  Moran,  44  Me.  67;  Hughes  v.  Boone,  102  N.  C.  137,  9  S.  E. 
286;  Robinson  v.  Barrows,  48  Me.  186;  Banchor  v.  Mansel,  47  Me.  58;  Web- 
ber V.  Howe,  36  Mich.  1.50,  24  Am.  Rep.  590;  Anding  v.  Levy,  57=  Miss.  51, 
84  Am,  Rep.  435;  Gllliland  v.  Phillips,  1  S.  C.  152;  Bailey  v.  Mogg,  4  Denio 
(N.  Y.)  60;  Ottaway  v.  Lowden,  55  App.  Dlv.  410,  66  N.  Y.  Snpp.  952; 
Denning  v.  Yount.  62  Kan.  217,  61  Pae.  803,  50  L.  R.  A.  103;  Wilcox  v.  Ed- 
wards, 162  Cal.  455,  123  Pae.  276,  Ann.  Cas.  1913C,  1392  (where,  however,  it 
is  said  that  statutes  changing  the  law  relating  to  usury  seem  to  constitute 
an  exception  to  this  rule).  Otherwise  where  contract  merely  voidable  and 
not  void.  Ewell  v.  Daggs,  108  U.  S.  143,  2  Sup.  Ct.  408,  27  L.  Ed.  682.  And 
see  Hartford  Fire  Ins.  Co.  v.  Railway  Co.  (C.  C.)  62  Fed.  904.  See  "Coji- 
tracts,"  Dec.  Dig.   {Key-yo.)   §  105;    Cent.  Dig.  §§  4S0-4S2. 

7  8  Boyce  v.  Tabb,  18  Wall.  546,  21  L.  Ed.  757;  Jump  v.  Johnson  (Ky.)  13 
S.  W.  843;  Richardson  v.  Campbell,  34  Neb.  181,  51  N.  W.  753,  33  Am.  St. 
Rep.  633;  Knight  v.  Lee,  [1893]  1  Q.  B.  41;  Stephens  v.  Railway  Co.,  109 
Cal.  86,  41  Pae.  783,  29  L.  R.  A.  751,  50  Am.  St.  Rep.  17.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  }  105;    Cent.  Dig.  §§  480-482. 

TO  United  States  v.  Dietrich  (C.  C.)  126  Fed.  671  [cit.  Clark  on  Contracts 
(1st  Ed.)  507];  American  Mercantile  Exchange  v.  Blunt,  102  Me.  128,  66  Atl. 
212,  10  L.  R.  A.  (N.  S.)  414,  120  Am.  St  Rep.  463,  10  Ann.  Cas.  1022.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  105;   Cent.  Dig.  §§  480-482. 

80  Meade  v.  Lamarche.  150  App.  Div.  42,  134  N.  Y.  Supp.  479.  See  "Con- 
tracts," Dec.  Dig.  {Key-No.)  §  105;    Cent.  Dig.  {§  480-482. 


438  OPERATION    OF    CONTllACT  (Ch.  9 

CHAPTER  IX 
OPERATION  OF  CONTRACT 

18S.  Limits  of  Contractual  Relation — In  General, 
189-190.  Imposing  Liability  on  Third  Persons. 

191-192.  Conferring  Rights  on  Third  Persons. 

193.  Assignment  of  Contracts — In  General. 

194.  Assignment  of  Liabilities  by  Act  of  Parties, 
195-197.            Assignment  of  Rights  by  Act  of  Parties. 

198.  Assignment  by  Operation  of  Law. 

199.  On  Transfer  of  Interests  in  Land. 

200.  On  Marriage. 

201.  On  Death. 

202.  Joint  and  Several  Contracts — In  GeneraL 
20a-204.  Joint  Contracts. 

205-206.  Several  Contracts. 

207.  Contracts  both  Joint  and  Several. 

208.  Contribution  between  Joint  Debtors. 

I 
Thus  far  we  have  endeavored  to  show  what  is  necessary  to  the 
formation  and  existence  of  a  valid,  contract.  Having-  ascertained 
this,  we  must  next  consider  its  effect  when  formed.  In  doing  so  we 
will  first  ascertain  to  whom  the  obligation  of  a  contract  extends, 
or  who  have  rights  or  liabilities  under  it.  Then  we  shall  ascertain 
the  extent  to  which  the  rights  and  liabilities  may  be  assigned  or 
pass  to  others  than  the  original  parties.  After  that  we  will  con- 
sider the  operation  and  effect  of  a  contract  having  several  parties 
on  one  or  both  sides. 

LIMITS  OF  CONTRACTUAL  RELATION— IN  GENERAL 

188.  As  a  rule,  a  contract  does  not  impose  liabilities  nor  confer 
rights  on  a  person  who  is  not  a  party  to  it. 

EXCEPTIONS — (a)  There  are  apparent  exceptions  to  this  rule: 

(1)  Where  one  person  represents  another  in  entering  into  a 

contract;    that  is,   in  the  case  of  contracts  through 
agents. 

(2)  Where  the  rights  or  liabilities  created  by  a  contract  pass 

to  a  person  or  persons  other  than  the  original  parties 
by  assignment, 
(b)  There  are  also  real  exceptions  to  the  rule  in  some  jurisdic- 
tions. 


§    188)  LIMITS    OF    CONTRACTUAL    RELATION  439 

The  rule  that  a  person  who  is  not  a  party  to  a  contract  cannot  be 
mcluded  in  the  rights  or  liabilities  which  it  creates,  so  as  to  entitle 
him  to  sue,  or  render  him  liable  to  be  sued,  upon  it,  flows  from  the 
very  nature  of  contract  as  a  legal  conception.  As  we  have  seen, 
a  true  contract  is  an  agreement  between  two  or  more  persons,  by 
which  an  obligation  or  legal  tie  is  created,  binding  those  persons 
together,  so  that  one  or  each  has  the  right  to  require  some  act  or 
forbearance  on  the  part  of  the  other.  As  a  rule,  the  legal  relations 
of  third  persons  are  not  affected,  because  they  are  not  parties  to  the 
agreement.  They  are  not  bound  by  the  legal  bond  which  it  creates, 
and  a  breach  thereof  cannot  give  them  any  rights.  Nor,  on  the 
other  hand,  can  any  liabilities  be  imposed  upon  them. 

It  will  be  noticed  that  the  rule  stated  in  the  black-letter  text  is 
divisible.  There  are  in  fact  two  rules — the  first,  that  a  contract 
cannot  impose  liabilities,  and  the  second,  that  it  cannot  confer 
rights,  on  a  person  who  is  not  a  party  to  it.^  We  can  better  reach  a 
correct  understanding  of  the  law  on  this  subject  if  we  consider 
each  of  these  rules  separately,  together  with  the  exceptions,  or  ap- 
parent exceptions,  peculiar  to  it;  but  before  doing  so  we  must  no- 
tice two  apparent  exceptions  to  the  rule  as  a  whole. 

Apparent  Exceptions  to  the  Rule — Agency 

Although  one  person  cannot,  as  a  rule,  by  contract  with  another, 
impose  liabilities,  nor  confer  rights,  on  a  third  person  not  a  party 
to  the  contract,  one  person  may  represent  another,  as  being  employ- 
ed by  him,  for  the  purpose  of  bringing  him  into  contractual  rela- 
tions with  a  third.  Employment  for  this  purpose  is  called  "agen- 
cy," the  employer  being  called  the  "principal"  and  the  employed  his 
"agent."  The  acts  of  the  agent  in  making  contracts  are  done  on 
behalf,  and  generally,  though  not  necessarily,  in  the  name,  of  his 
principal.  The  principal  really  becomes  a  party  to  the  contract 
made  for  him  by  his  agent.  A  contract  made  by  an  agent  can  bind 
the  principal  only  by  force  of  a  previous  authority  or  subsequent 
ratification  by  the  principal,  and  this  authority  or  ratification  is 
nothing  else  than  the  assent  of  the  principal  to  be  bound.  The  con- 
tract which  binds  him  is  his  own  contract.  After  all,  therefore,  this 
is  only  an  apparent  exception  to  the  rule  that  persons  not  parties 
to  a  contract  are  not  bound  or  given  rights  thereby. 

Same — Assignment  of  Contracts 

If  John  Doe  contracts  with  Richard  Roe,  their  contract  cannot 
impose  liabilities  or  confer  rights  upon  John  Styles.  There  are  cir- 
cumstances, however,  under  which  John  Doe  or  Richard  Roe  may 

»  Auson,  CouL   (-Itb  Ed.)  209. 


440  OPERATION  OF  CONTRACT  (Ch.  9 

substitute  John  Styles  for  himself  as  a  party  to  the  contract,  and 
there  are  circumstances  under  which  the  law  would  operate  to  ef- 
fect this  substitution.  John  Styles  thus  becomes  a  party  to  the 
contract.  This  substitution  is  called  assignment  of  the  contract. 
Before  discussing  assignment  we  will  take  up  in  turn,  and  explain, 
each  subdivision  of  the  general  rule  mentioned  in  the  black-letter 
text,  and  show  the  exceptions  to  which  it  is  subject. 


SAME— IMPOSING  LIABILITY  ON  THIRD  PERSONS 

189.  A  contract  cannot  impose  liabilities  on  a  person  who  is  not  a 

party  to  it. 

190.  A  contract,  however,  between  master  and  servant  at  least,  im- 

poses a  duty  on  third  persons  not  to  interfere  maliciously 
with  its  performance  by  inducing  the  servant  to  break  it, 
and  for  a  violation  of  this  duty  an  action  will  lie.  Many- 
courts  hold  that  the  doctrine  applies  to  all  contracts. 

The  proposition  that  a  man  cannot  incur  liabilities  from  a  con- 
tract to  which  he  was  not  a  party  is  a  part  of  a  wider  rule  that  lia- 
bility ex  contractu  cannot  be  imposed  upon  a  man  otherwise  than 
by  his  act  or  consent.  "A  man  cannot,  of  his  own  will,  pay  anoth- 
er man's  debt  without  his  consent,  and  thereby  convert  himself  into 
a  creditor."  '  Two  persons  cannot,  by  any  contract  into  which 
they  may  enter,  thereby  impose  liabilities  upon  a  third  person.^ 
Where  a  person,  for  instance,  contracts  with  another  to  perform 
services  for  him,  or  to  sell  him  goods,  he  may,  under  some  circum- 
stances, procure  the  services  to  be  rendered  or  the  goods  delivered 
by  a  third  person,  and  thus  perform  his  contract;  but  he  cannot, 
by  any  such  agreement  with  a  third  person,  confer  upon  the  latter 
the  right  to  require  payment  of  the  other  party.  Nor  will  the  law 
create  a  contract  between  the  latter  and  such  third  person  because 
of  the  acceptance  of  the  services  or  goods,  where  there  was  no  in- 
tention to  enter  into  legal  relations  with  the  third  person.* 

2  Durnford  v.  Messiter,  5  Maule  &  S.  446;  Hearn  v.  Cullin,  54  Md.  533. 
See  "Contracts,"  Dec.  Dig.  (Ecij-No.)  §  186;  Cent.  Dig.  §§  700-797;  "Moneu 
Paid,"  Dec.  Dig.  (Key-No.)  §  i;   Cent.  Dig.  §  13. 

3  Rossman  v.  Townsend,  17  Wis.  98,  S4  Am.  Dec.  733;  Bolles  v.  CarU,  12 
Minn.  113  (Gil.  62)  ;  Evans ville  &  S.  I.  Traction  Co.  v.  Evansville  Belt  Ry. 
Co.,  44  Ind.  App.  155,  87  N.  E.  21.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  § 
J 77;    Cent.  Dig.  §§  77 1-77 If. 

4  Schmaling  v.  Thomlinson,  6  Taunt  147;  BOSTON  ICE  CO.  v.  POTTER, 
J  23  Mass.  28,  25  Am.  Rep.  9,  Throckmorton  Gas.  Contracts,  305;    School  Dist 


§§    189-190)  LIMITS    OF    CON'TRACTUAL    RELATION  441 

Contract  may  Impose  Duty  on  Third  Parties 

Though  a  contract  cannot  impose  the  burdens  of  an  obligation 
upon  one  who  was  not  a  party  to  it,  it  may  impose  a  duty  upon  per- 
sons extraneous  to  the  obligation  not  to  interfere  maliciously  with 
its  due  performance.  In  a  leading  English  case,  Lumley  v.  Gye," 
where  a  person  induced  a  singer  to  break  her  contract  with  the 
manager  of  an  opera  house,  and  was  sued  by  the  manager  for  mali- 
ciously procuring  the  breach,  it  was  argued  (1)  that  an  action 
would  lie  against  one  who  procured  the  breach  of  any  kind  of  con- 
tract ;  and  (2)  that,  if  that  were  not  so,  an  action  would  lie,  at  any 
rate,  for  inducing  a  servant  to  quit  the  service  of  his  master.  The 
relation  of  master  and  servant  has  always  been  held  to  involVe  a 
right  on  the  part  of  the  master  to  sue  any  one  who'enticed  away 
his  servant,  and  so  the  court  was  called  upon  to  answer  two  ques- 
tions:  Does  an  action  lie  for  procuring  a  breach  of  any  contract? 
If  not,  then  does  the  exceptional  rule  applicable  to  the  contract  of 
master  and  servant  apply  to  the  manager  of  a  theater  and  the  actors 
whom  he  engages  to  perform?  The  majority  of  the  court  answered 
both  questions  in  the  affirmative,  with  the  qualification  that  the  in- 
ducement must  be  malicious.  Later  English  cases  have  affirmed 
this  decision,  but  upon  the  broad  ground  that  it  is  an  actionable 
wrong  maHciously  to  induce  another  to  break  a  contract.^  If  the 
interference  is  used  for  the  purpose  of  injuring  the  plaintiff  or  of 
benefiting  the  defendant  at  the  expense  of  the  plaintiff,  the  conduct 
is  malicious.  The  same  doctrine  has  been  held  by  many  courts  in 
this  country.^  On  the  other  hand,  some  courts  have  held  that  the 
doctrine  does  not  apply  to  other  contracts  than  the  contract  be- 

of  Beatrice  v.  Thomas,  51  Neb.  740,  71  N.  W.  731;    post,  p.    443.    See  "Con- 
tracts," Deo.  Dig.   (Key-No.)  §  177;    Cent.  Dig.  §§  711-77 Jt. 

6  2  El.  &  Bl.  216.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  18S;  Cent.  Dig. 
§§  S08-S10. 

BBowen  v.  Hall,  6  Q.  B.  Div.  339;  Temperton  v.  Russell,  [1893]  1  Q.  B. 
376.     See  "Torts,"  Dec.  Dig.  (Key-No.)  §  12;    Cent.  Dig.  §  13. 

7  PERKINS  V.  PENDLETON,  90  Me.  106,  38  Atl.  96,  60  Am.  St.  Rep.  252, 
Throckmorton  Cas.  Contracts,  308;  Walker  v.  Cronin,  107  Mass.  555 ;  Jones 
V.  Stanly,  76  N.  C.  355;  Lucke  v.  Clothing  Cutters,  77  Md.  396,  26  Atl.  505, 
19  L.  R.  A.  408,  39  Am.  St.  Rep.  421 ;  Jones  v.  Blocker,  43  Ga.  331 ;  Chipley 
V.  Atkinson,  23  Fla.  206,  1  South.  934,  11  Am.  St.  Rep.  367 ;  Haskins  v.  Roy- 
ster,  70  N.  C.  601,  16  Am.  Rep.  780;  Angle  v.  Railroad  Co.,  151  U.  S.  1,  14 
Sup.  Ct.  240,  38  L.  Ed.  55;  Van  Horn  v.  Van  Horn,  56  N.  J.  Law,  318,  28 
Atl.  669;  Morgan  v.  Andrews,  107  Mich.  33,  04  N.  W.  809.  And  see  Ensor 
V.  Bolgiano,  67  Md.  190,  9  Atl.  529;  Dudley  v.  BCriggs,  141  Mass.  582,  6  N.  E. 
717,  55  Am.  Rep.  494;  Burgess  v.  Carpenter,  2  S.  C.  7,  16  Am.  Rep.  643; 
Doremus  v.  Hennessy,  176  111.  608,  52  N.  E.  924,  43  L.  R.  A.  797,  802,  68  Am. 
St  Rep.  203.     See  "Torts,"  Dec  Dig.  (Key-No.)  §  12;   Cent.  Dig.  §  13. 


442  OPERATION  OF  CONTRACT  (Ch,  9 

tween  master  and  servant.*    As  to  this  contract,  there  is  probably 
no  conflict  at  all.* 


SAME— CONFERRING  RIGHTS  ON  THIRD  PERSONS 

191.  As  a  rule,  a  contract  cannot  confer  rights  on  a  person  who  is 

not  a  party  to  it, 

192.  EXCEPTIONS — (a)  The  rule  is  subject  to  apparent  excep- 

tions as  follows: 

(1)  If  the  contract  is  such  as  to  constitute  the  promisor  trus- 

tee for  the  benefit  of  the  third  person,  the  latter  may 
sue  in  equity. 

(2)  Where  money  or  other  property  has  come  into  the  prom- 

isor's hands  by  virtue  of  the  contract,  for  the  use  of 
the  third  person,  the  law  creates  a  so-called  contract 
between  him  and  such  third  person,  on  which  the  lat- 
ter may  sue. 
(b)  In  many  of  the  states  an  exception  is  made  in  case  of  a  prom- 
ise made  for  the  benefit  of  a  third  person,  and  the  latter  is 
allowed  to  sue  thereon.     It  seems,  however,  that  there 
must  be  such  a  relation  between  the  promisee  and  the  per- 
son for  whose  benefit  the  promise  is  made  as  makes  the 
performance  of  the  promise  a  satisfaction  of  some  legal 
or  equitable  duty  owing  by  the  former  to  the  latter.^ ** 

8  Chambers  v.  Baldwin,  91  Ky.  121,  15  S.  W.  57,  11  L.  R.  A.  545,  34  Am. 
St  Rep.  165;  Ashley  v.  Dixon,  48  N.  Y.  430,  8  Am.  Rep.  559;  Heywood  v. 
Tillson,  75  Me.  225,  46  Am.  Rep.  373;  Bourlier  v.  Macauley,  91  Ky.  135,  15 
S.  W.  60,  11  L.  R.  A.  550,  34  Am.  St  Rep.  171;  Boyson  v.  Thorn,  98  Cal. 
578,  33  Pac.  492,  21  L.  R.  A.  233 ;  Glencoe  Land  &  Gravel  Co.  v.  Commission 
Co.,  138  Rio.  439,  40  S.  W.  93,  36  L.  R.  A.  804,  60  Am.  St  Rep.  500.  All  the 
courts  probably  agree,  however,  that  an  action  will  lie  by  a  party  to  a  con- 
tract against  a  third  person  for  fraudulent  representations  by  the  latter,  in- 
ducing the  other  party  to  the  contract  to  break  it.  Rice  v.  Manley,  66  N.  Y. 
82,  23  Am.  Rep.  30;  Benton  v.  Pratt  2  Wend.  (N.  Y.)  385,  20  Am.  Dec.  623; 
Ashley  v.  Dixon,  48  N.  Y.  430,  8  Am.  Rep.  559.  See  "Master  and  Servant," 
Dec.  Dig.  {Key-No.)  §  SS9;   Cent.  Dig.  §  12S3. 

9  Bixby  V.  Dunlap,  56  N.  H.  456,  22  Am.  Rep.  475 ;  Noice  v.  Brown,  39 
N.  J.  Law,  569;  Heywood  v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373;  Wood- 
ward V.  Washburn,  3  Denio  (N.  Y.)  369;  Walker  v.  Cronin,  107  Mass.  555; 
Ames  V.  Railway  Co.,  117  Mass.  541,  19  Am.  Rep.  426;  Haskins  v.  Royster, 
70  N.  C.  601,  16  Am.  Rep.  780;  Jones  v.  Blocker,  43  Ga.  331;  Daniel  v. 
Swearengen,  6  S.  C.  297,  2^  Am.  Rep.  471 ;  HufC  v.  Watkins,  15  S.  C.  82,  40 
Am.  Rep.  680.  See  "Master  and  Servant,"  Dec.  Dig.  (Key-No.)  §  339;  Cent. 
Dig.  §  12S3. 

10  See  article  by  Professor  Samuel  Williston  on  "Contracts  for  the  Benefit 
of  a  Third  Person,"  15  Harv.  L.  R.  767. 


§§    191-192)  LIMITS    OF    CONTRACTUAL    RELATION  443 

This  rule,  in  its  general  application,  is  recognized  by  all  courts. 
It  is  settled,  for  instance,  that  where  a  bilateral  contract  is  made,  a 
third  person  cannot  perform  for  one  of  the  parties,  and  himself 
claim  performance  by  the  other.  He  cannot  thus  acquire  rights 
under  the  contract,  even  by  agreement  with  the  party  whose  prom- 
ise he  performs,  unless  the  contract,  as  will  be  presently  explained, 
is  assignable,  and  is  assigned.  This  is,  in  effect,  another  way  of 
looking  at  the  rule  which  we  have  already  considered — that  a  con- 
tract cannot  impose  liabilities  on  a  person  not  a  party  to  it. 

In  a  leading  English  case,  shippers  had  employed  a  firm  of  bro- 
kers to  transport  a  quantity  of  cocoa  for  them,  and  the  brokers  got 
a  third  person  to  do  it.  It  was  held  that  the  latter  could  not  sue 
the  shippers  for  his  expenses  and  commission,  inasmuch  as  there 
was  no  privity  of  contract  between  him  and  them.  It  was  said  that 
the  brokers  were  employed  by  the  shippers  to  do  the  whole  work 
for  them ;  that  the  shippers  looked  to  the  brokers  for  the  perform- 
ance of  the  work,  and  the  brokers  had  a  right  to  look  to  them  for 
payment,  and  that  no  one  else  had  that  right.^^  *  This  case  illus- 
trates both  of  the  rules  which  we  are  considering.  The  contract 
between  the  brokers  and  the  third  person  could  not  impose  a  lia- 
bility on  the  shippers,  as  they  were  not  parties  to  it ;  nor  could  the 
contract  between  the  shippers  and  the  brokers  confer  any  rights 
upon  the  third  person,  since  he  was  not  a  party  to  it. 

Thus  far  the  rule  is  clear  and. is  not  controverted.^*  A  difficulty, 
and  considerable  difference  of  opinion,  arises,  however,  where  the 
contract  consists  of  a  promise  expressly  made  by  one  of  the  parties 
for  the  benefit  of  a  third  person ;  as,  where  one  of  the  parties,  for 
a  consideration  moving  from  the  other,  promises  him  to  pay  money 
to,  or  perform  services  for,  a  stranger  to  the  contract.  There  may 
be  said  to  be  three  different  doctrines  on  this  point;  and  probably 
there  are  more.    For  convenience  we  will  call  them  the  English,^* 

11  Schmaling  v.  Thomlinson,  6  Tauut  147.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  181;   Cent.  Dig.  §§  79S-S07. 

12  Standard  Oil  Co.  v.  Murray,  119  Fed.  572,  57  C.  C.  A.  1.  To  the  effect 
that  a  company  which  has  contracted  with  a  city  to  supply  it  with  water 
for  extinguishing  fires  is  not  liable  for  breach  of  the  contract  to  a  citizen 
whose  property  is  destroyed  because  of  such  breach,  see  Becker  v.  Water- 
works, 79  Iowa,  419,  44  N.  W.  (J94,  18  Am.  St.  Rep.  377;  Fitch  v.  Water  Co., 
139  Ind.  214,  37  N.  E.  982,  47  Am.  St.  Rep.  258;  House  v.  Waterworks  Co., 
88  Tex.  233,  31  S.  W.  179,  28  L.  R.  A.  532 ;  Boston  Safe-Deposit  &  Trust  Co. 
V.  Salem  Water  Co.  (C.  C.)  94  Fed.  238.  Contra,  Paducah  Lumber  Co.  v. 
Paducah  Water  Supply  Co.,  89  Ky.  340,  12  S.  W.  554,  7  L.  R.  A.  77,  25  Am. 
St  Rep.  53G ;  Gorrell  v.  Water  Supply  Co.,  124  N.  C.  328,  32  S.  E.  720,  46 
L.  R.  A.  513,  70  Am.  St  Rep.  598.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  i 
187;    Cent.  Dig.  §§  7.98-.S07. 

18  Anson,  Cout  (4th  Ed.)  212  et  seq. 


444  OPERATION  OF  CONTRACT  (Ch.  9 

the  Massachusetts,  and  the  New  York  doctrines,  and  will  treat  them 
separately. 

Promise  for  Benefit  of  Third  Person — The  English  Doctrine 

If  two  persons  should  make  a  contract  in  which  one  promises 
to  do  something  for  a  third  person,  all  three  might  be  willing 
that  such  third  person  should  have  all  the  rights  of  an  actual 
contracting  party,  and  should  be  allowed  to  sue  on  the  promise. 
In  England,  however,  it  is  established  that  the  action  cannot  be 
maintained.  If  a  person  makes  a  promise  to  another,  the  con- 
sideration for  which  is  a  benefit  to  be  conferred  by  the  promisee 
on  a  third  person,  the  contract  confers  no  right  on  the  third 
person  to  sue.  In  a  leading  English  case  the  defendant  had  made 
a  promise  that,  in  consideration  of  the  promisee's  working  for 
him,  he  would  pay  the  plaintiff  a  sum  of  money,  and  it  was  held 
that  the  plaintiff  could  not  recover  on  the  promise.  The  mem- 
bers of  the  court  stated  in  different  forms  the  same  reason  for 
their  decision.  One  said  that  the  declaration  did  not  "show 
any  consideration  for  the  promise  moving  from  the  plaintiff  to 
defendant" ;  another,  that  "no  privity  is  shown  between  the  plain- 
tiff and  the  defendant";  another,  that  it  was  "consistent  with 
the  matter  alleged  in  the  declaration  that  the  plaintiff  may  have 
been  entirely  ignorant  of  the  arrangement"  )3etween  the  promisee 
and  the  defendant;  and  another,  that  there  was  "no  promise 
to  the  plaintiff  alleged."  " 

Sam  e — Excep  tions 

It  was  at  one  time  thought  m  England  that,  if  the  person  who 
was  to  take  a  benefit  under  the  contract  was  nearly  related  by 
blood  to  the  promisee,  a  right  of  action  would  vest  in  him ;  ^^  but 
such  a  doctrine,  if  it  ever  really  existed,  has  been  overruled.  In 
a  case  in  which  the  respective  fathers  of  the  parties  to  a  mar- 
riage had  entered  into  a  contract  between  themselves  only  that 
each  should  pay  a  sum  of  money  to  the  husband,  and  expressly 
stipulated  that  the  latter  should  have  power  to  sue  therefor,  it 
was  held  that  an  action  by  him  would  not  lie.  "Some  of  the  old 
decisions,"  it  was  said,  "appear  to  support  the  proposition  that 
a  stranger  to  the  consideration  of  a  contract  may  maintain  an 
action  upon  it  if  he  stands  in  such  a  near  relationship  to  the  party 
from  whom  the  consideration  proceeds  that  he  may  be  considered 

i<  Price  V.  Easton,  4  Bam.  &  Adol.  433.  And  see  Tweddle  v.  Atkinson,  1 
Best  &  S.  393.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  187;  Cent.  Dig.  §§ 
798-807. 

16  Button  V.  Poole,  2  Lev,  210 ;  Bourne  v.  Mason,  1  Vent.  &  See  "Con- 
tracts," Dec.  Dig.  {Key-No.)  §  JS7;   Cent.  Dig.  §§  79S-807. 


§§    191-192)  LIMITS    OP    CONTRACTUAL    RELATION  445 

a  party  to  the  consideration.  *  *  *  It  is  now  established 
that  no  stranger  to  the  consideration  can  take  advantage  of  a 
contract,  although  made  for  his  benefit."  ^® 

In  courts  of  equity,  language  has  been  used,  sometimes  very 
explicit,  to  the  effect  that,  where  money  is  payable  to  one  person 
for  the  benefit  of  another,  the  latter  "can  claim  under  the  con- 
tract as  if  it  had  been  with  himself";*^  but  the  later  cases  go  to 
show  that  even  in  equity  a  person  who  was  not  a  party  to  a 
contract  cannot  acquire  rights  thereunder  and  sue  thereon.^*  The 
beneficiary  of  a  contract  acquires  no  rights  ex  contractu,  even 
in  equity.  If  the  contract  is  so  framed  as  to  make  one  of  the 
parties  Jrjustee  for  a  third  person  for  whose  benefit  it  is  made, 
sucTi'third  person  acquires  rights  by  virtue  of  the  trust.  A  mere 
contract,  however,  between  two  parties,  that  one  of  them  shall 
pay  money  to  a  third,  does  not  make  that  third  person  a  cestui 
que  trust,  Thej:fi_must  be  some  declaration  of  trust  by  one  of 
the  contracting  parties~Irr7avor  of  the  third  person.^' 

Same — Massachusetts  Doctrine 

The  English  doctrine  on  this  subject  is  also  recognized  by  the 
Massachusetts  court,  and  by  the  courts  of  some  of  the  other 
states.^"     "The  general  rule  of  law,"  it  was  said  by  the  Massa- 

le  Tweddle  t.  Atkinson,  1  Best  &  S.  393.     See  "Contracts,"  Dec.  Dig.  {Kep- 

Tfo.)  §  187;    Cent.  Dig.  §§  79S-807. 

17  Touche  V.  Warehousing  Co.,  6  Ch.  App.  671 ;  Spiller  v.  Skating  Rink, 
7  Ch.  Div.  368.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  187;  Cent.  Dig.  §§ 
798-807. 

18  Eley  V.  Assurance  Co.,  1  Exch.  Div.  (Ct.  App.)  88;  In  re  Empress  Eng. 
Co.,  16  Ch.  Div.  125.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  187;  Cent. 
Dig.  §§  798-807. 

19  Two  English  cases,  decided  about  the  same  time,  are  cited  by  Anson  as 
illustrating  this  distinction.  In  one  it  was  held  that  a  clause  in  a  contract 
of  partnership  which  provided  for  the  payment  of  an  annuity,  for  five  years 
after  the  determination  of  the  partnership,  to  the  retiring  partner  or  his 
widow,  created  a  trust  in  favor  of  the  widow.  Murray  v.  Flavell,  25  Ch. 
Div.  89.  On  the  other  hand,  where  a  person  bad  employed  the  plaintiff  in 
the  formation  of  the  defendant  company,  and  aftenvards  agreed  with  the 
company  that  it  should  pay  the  plaintiff  for  his  services,  it  was  held  that 
the  agreement  gave  no  right  of  action  to  the  plaintiff.  In  re  Rotheram  Alum 
Co.,  25  Ch.  Div.  104.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  187;  Cent.  Dig. 
Cent.  Dig.  §§  798-807. 

20  Exchange  Bank  of  St  Louis  v.  Rice,  107  Mass.  37,  9  Am.  Rep.  1;  Rog- 
ers V.  Stone  Co.,  130  Mass.  581,  39  Am.  Rep.  478;  Wheeler  v.  Stewart,  94 
Mich.  445,  54  N.  W.  172 ;  Linneman  v.  Moross'  Estate,  98  Mich.  178,  57  N.  W. 
103,  39  Am.  St.  Rep.  528;  Edwards  v.  Clement,  81  Mich.  513,  45  N.  W.  1107; 
Pipp  V.  Reynolds,  20  Mich.  88 ;  Woodland  v.  Nowhall's  Adm'r  (C.  C.)  31  Fed. 
434;  Adams  v.  Kuehn,  119  Pa.  76,  13  Atl.  184;  Wilbur  v.  Wilbur,  17  R  1. 
295,  21  Atl.  497 ;    Baxter  v.  Camp,  71  Conn.  245,  41  AU.  803,  42  L.  R.  A.  514, 


446  OPERATION  OF  CONTRACT  (Ch.  9 

chusetts  court,  "is  that  a  person  who  is  not  a  party  to  a  simple 
contract,  and  from  whom  no  consideration  moves,  cannot  sue  on 
the  contract;  and,  consequently,  that  a  promise  made  by  one 
person  to  another  for  the  benefit  of  a  third  person,  who  is  a 
stranger  to  the  consideration,  will  not  support  an  action  by  the 
latter."  " 

Same — Exceptions  to  the  Massachusetts  Doctrine 

There  is  no  doubt  that  in  this  country  courts  of  equity  recog- 
nize the  apparent  exception  to  this  rule,  already  mentioned  in  the 
case  of  trusts ;  and  that  where  a  contract,  consisting  of  a  promise 
for  the  benefit  of  a  third  person,  is  so  framed  as  to  make  the 
promisor  a  trustee  for  such  third  person,  the  latter  may  sue  to 
enforce  the  trust.^^ 

In  addition  to  this,  there  is  another  apparent  exception.  This 
exception  is  in  cases  where,  under  a  contract  in  which  a  promise 
is  made  for  the  benefit  of  a  third  person,  assets  come  to  the 
promisor's  hands,  or  under  his  control,,  which__iQL-ei},uity  belong 
tojthe  third  person;  or,  as  it  has  been  expressed,  "those  cases 
in  which  the  defendant  has  in  his  hands  money  which  in  equity 
'  and  good  conscience  belongs  to  the  plaintiff,  as  where  one  person 
receives  from  another  money  or  property  as  a  fund  from  which 
certain  creditors  of  the  depositor  are  to  be  paid,  and  promises, 
either  expressly  *or  by  implication  from  his  acceptance  of  the 
money  or  property  without  objection  to  the  terms  on  which  it 
is  delivered  to  him,  to  pay  such  creditors."  ^*     In  such  cases  the 

71  Am.  St  Eep.  169;  Morgan  v.  Randolph  &  Clowes  Co.,  73  Conn.  39G,  47 
Atl.  658,  51  L.  R.  A.  653;  Knights  of  the  Modern  Maccabees  v.  Sharp,  163 
Mich.  449,  128  N.  W.  786,  33  L.  R.  A.  (N.  S.)  780.  And  see  Sheppard  v. 
Bridges,  137  Ga.  615,  74  S.  E.  245.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  S 
1S7;    Cent.  Dig.  §§  79S-S07. 

21  Exchange  Bank  of  St.  Louis  v.  Rice,  107  Mass.  37,  9  Am.  Rep.  1;  BOR- 
DEN V.  BOARDMAN,  157  Mass.  410,  32  N.  E.  469,  Throckmorton  Cas.  Con- 
tracts, 314.  See  ''Contracts"  Dec.  Dig.  {Key-No.)  §  181;  Cent.  Dig.  §§  79S- 
801. 

2  2  Union  Pac.  R.  Co.  v.  Durant,  95  U.  S.  576,  24  L.  Ed.  391;  Chace  v. 
Chapin,  130  Mass.  128;  Preachers'  Aid  Soc.  v.  England,  106  111.  125;  Mory 
V.  Michael,  IS  Md.  227;  Harrisburg  Bank  v.  Tyler,  3  Watts  &  S.  (Pa.)  373. 
And  see  Allen  v.  Withrow,  110  U.  S.  119,  3  Sup.  Ct.  517,  28  L.  Ed.  90.  See 
''Contracts,"  Dec.  Dig.  {Key-No.)  §  181;  Cent.  Dig.  §§  798-807;  "Trusts," 
Dec.  Dig.  {Key-No.)  §  35;    Cent.  Dig.  §§  J^S-SO. 

23  Exchange  Bank  of  St.  Louis  v.  Rice,  107  Mass.  37,  9  Am.  Rep.  1 ;  Hojwes 
V.  Scott,  224  Pa.  7,  73  Atl.  186 ;  Barry  v.  Jordan,  116  Minn.  34,  133  N.  W.  7& 
The  exceptions  to  the  rule  that  a  stranger  to  a  contract  cannot  maintain  an 
action  on  it  were  stated  by  the  supreme  court  of  the  United  States  in  lan- 
guage frequently  referred  to  by  that  court  with  approval,  as  follows:  "There 
are  confessedly  many  exceptions  to  it.  One  of  them,  and  by  far  the  most 
frequent  one,  is  the  case  where,  under  a  contract  between  two  persons,  assets 


§§    191-192)  LIMITS    OF    CONTRACTUAL    RELATION  447 

third  person  may  sue  the  promisor  in  his  own  name.  The  rights 
of  the  third  person  are  not  conferred  upon  him  by  the  contract 
between  the  promisor  and  promisee,  but  arise  out  of  a  contract 
created  by  law,  or  quasi  contract,  between  the  promisor  and  the 
third  person.^* 

The  exception  formerly  recognized  in  England,  but  since  over- 
ruled there,  to  the  effect  that,  if  a  third  person  for  whose  benefit 
a  contraat_is,,made  is  nearly  related  by  blood  to  the  promisee;  a 
right  of^actipn  on  the  promise  vests  in  him,  has  been  recognized 
in  this  country/^  but  some  of  the  courts  have  refused  to  recognize 

have  come  to  the  promisor's  hands  or  under  his  control  which  in  equity  be- 
long to  a  third  person.  In  such  a  case  it  is  held  that  the  third  person  may 
sue  in  his  own  name.  But  then  the  suit  is  founded  rather  on  the  implied 
undertaking  the  law  raises  from  the  possession  of  the  assets  than  on  the  ex- 
press promise.  Another  exception  is  where  the  plaintiff  is  the  beneficiary 
solely  interested  in  the  promise,  as  where  one  person  contracts  with  another 
to  pay  money  or  deliver  some  valuable  thing  to  a  third.  But  where  a  debt 
already  exists  from  one  person  to  another,  a  promise  by  a  third  person  to  pay 
such  debt  being  primarily  for  the  benefit  of  the  original  debtor,  and  to  re- 
lieve him  from  liability  to  pay  it  (there  being  -no  novation),  he  has  a  right 
of  action  against  the  promisor  for  his  own  indemnity ;  and,  if  the  original 
creditor  can  also  sue,  the  promisor  would  be  liable  to  two  separate  actions, 
and  therefore  the  rule  is  that  the  original  creditor  cannot  sue.  His  case  is 
not  an  exception  from  the  general  rule  that  privity  of  contract  is  required. 
There  are  some  other  exceptions  recognized,  but  they  are  unimportant  now." 
Second  Nat.  Bank  v.  Grand  Lodge,  98  U.  S.  12.3,  25  L.  Ed.  75.  See,  also,  Kel- 
ler V.  Ashford,  133  U.  S.  610,  10  Sup.  Ct  494,  33  L.  Ed.  667;  Willard  v. 
Wood,  135  U.  S.  309,  10  Sup.  Ct.  831,  34  L.  Ed.  210;  Union  Mut.  Life  Ins. 
Co.  V.  Hanford,  143  U.  S.  1S7,  12  Sup.  Ct.  437,  36  L.  Ed.  118;  Johns  v.  Wil- 
son, ISO  U.  S.  440,  21  Sup.  Ct.  445,  45  L.  Ed.  613.  The  question  whether  the 
remedy  of  the  mortgagee  against  a  grantor  who  has  assumed  the  mortgage 
is  in  law  in  his  own  right,  or  in  equity  and  in  the  right  of  the  mortgagor 
only,  is  to  be  determined  by  the  law  of  the  place  where  the  suit  is  brought. 
Willard  v.  Wood,  supra ;  Union  Mut  Life  Ins.  Co.  v.  Hanford,  supra ;  Johns 
V.  Wilson,  supra.  See,  also,  Adams  v.  Shirk,  105  Fed.  659,  44  C.  C.  A.  653. 
iSee  "Contracts,"  Dec.  Dig.  {Key-No.)  §  187;   Cent.  Dig.  §§  798-807. 

2*  Carnegie  v.  Morrison,  2  Mete.  .(Mass.)  381;  Putnam  v.  Field,  103  Mass. 
556;  Spencer  v.  Towles,  18  Mich.  9;  Grim  v.  Iron  Co.,  115  Pa.  611,  8  Atl. 
595 ;  Hosford  v.  Kanouse,  45  Mich.  620,  8  N.  W.  507 ;  Second  Nat.  Bank  v. 
Grand  Lodge,  98  U.  S.  123,  25  L.  Ed.  75;  Hostetter  v.  HoUinger,  117  Pa.  600, 
12  Atl,  741;  O'Neal  v.  Board,  27  Md.  227;  Wood  v.  Moriarty,  15  R.  I.  518. 
9  Atl.  427;  Lewis  v.  Sawyer,  44  Me.  332;  Keene  v.  Sage,  75  Me.  138;  Taylor 
V.  Taylor,  20  111.  650.  See  "Contracts,"  Dec  Dig.  (Key-No.)  §  1S7 ;  Cent. 
Dig.  §§  79SS07. 

26  Felton  v.  Dickinson,  10  Mass.  287;  Benge  v.  Pliatfs  Adm'r,  82  Ky.  666, 
56  Am.  Rep.  912.  See,  also,  Buchanan  v,  Tilden,  158  N.  Y.  109,  52  N.  E.  724, 
44  L.  R.  A.  170,  70  Am.  St.  Rep.  454;  Everdell  v.  Hill,  27  Misc.  Rep.  285, 
58  N.  Y.  Supp.  447.  See  "Contracts,"  Deo.  Dig.  {Key-No.)  §  187;  Cent.  Dig. 
§§  798-807. 


448  OPERATION  OP  CONTRACT  (Ch.  9 

it"  Even  in  Massachusetts,  where  it  has  been  directly  held,  the 
court  has  since  expressed  a  doubt  on  the  question,  even  if  it 
has  not  expressly  held  the  contrary.^^ 

Same — The  New  York  Doctrine 

In  New  York,  and  in  most  of  the  other  states,  the  courts  have 
refused  to  recognize  the  doctrine  that  a  person  for  whose  bene- 
fit a  promise  is  made  cannot  sue  the  promisor  unless  he  was  a 
party  to  the  contract.  In  a  leading  New,  York  case  a 'debtor  of 
the  plaintiff  had  loaned  money  to  the  deiendant,  and  the  defend- 
ant had  promised  him  to  pay  the  plaintiff.  The  plaintiff  was  not 
a  party  to  the  contract,  but  it  was  held  by  four  of  the  seven 
judges  that  he  could  sue  on  the  promise,  as  it  was  considered 
settled  in  that  state  that,  where  a  promise  is  "made  to  one  for 
the  benefit  of  another,  he  for  whose  benefit  it  is  made  may  bring 
an  action  for  its  breach."  ^^  In  many  cases  the  rule  has  been 
declared  broadly  as  thus  stated.^' 

2«  Wilbur  V.  Wilbur,  17  R.  I.  295,  21  Atl.  497 ;  Llnneman  v.  Moross'  Estate, 
98  Mich.  178,  57  N.  W.  103,  39  Am.  St.  Rep.  528.  See  ''Contracts,"  Dec.  Dig. 
(Key-No.)   §  187;    Cent.  Dig.  §§  798-807. 

27  Exchange  Bank  of  St.  Louis  v.  Rice,  107  Mass.  37,  9  Am.  Rep.  1;  Mar- 
ston  V.  Bigelow,  150  Mass.  53,  22  N.  E.  71,  5  L.  R.  A.  43.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  187;   Cent.  Dig.  §§  798-807. 

28  LAWRENCE  v.  FOX,  20  N.  T.  268,  Throckmorton  Cas.  Contracts,  315. 
See,  also,  Schermerhom  v.  Vanderheyden,  1  Johns.  140,  3  Am.  Dec.  304;  Todd 
V.  Weber,  95  N.  Y.  181,  47  Am.  Rep.  20;  Stewart  v.  Trustees,  2  Denio  (N.  Y.) 
403;  Gififord  v.  Corrigan,  117  N.  Y.  257,  22  N.  E.  756,  6  L.  R,  A.  610,  15  Am. 
St.  Rep.  50a  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  187;  Cent.  Dig.  §§  798- 
807. 

2»Bassett  v.  Hughes,  43  Wis.  319;  Bristow  v.  Lane,  21  111.  194;  Bay  v. 
Williams,  112  111.  91,  1  N.  E.  340,  54  Am.  Rep.  209;  Mason  v.  Hall,  30  Ala. 
599;  Brice  v.  King,  1  Head  (Tenn.)  152;  Wood  v.  Moriarty,  15  R.  I.  518,  9 
Atl.  427 ;  Small  v.  Schaefer,  24  Md.  l43 ;  Bohanan  v.  Pope,  42  Me.  93 ;  Cole- 
man V.  Whitney,  62  Vt.  123,  20  Atl.  322,  9  L.  R.  A.  517;  Kaufman  v.  Bank, 
31  Neb.  661,  48  N.  W.  738 ;  Hendrick  v.  Lindsay,  93  U.  S.  143,  23  L.  Ed.  855 ; 
Flint  V.  Cadenasso,  64  Cal.  83,  28  Pac.  62 ;  Hecht  v.  Caughron,  46  Ark.  135 ; 
Jones  V.  Thomas,  21  Grat.  (Va.)  96;  Robbins  v.  Ayres,  10  Mo.  538,  47  Am. 
Dec.  125;  Whitehead  v.  Burgess,  61  N.  J.  Law,  75,  38  Atl.  802;  Enos  v, 
Sanger,  96  Wis.  150,  70  N.  W.  1009,  37  L.  R.  A.  862,  65  Am.  St  Rep.  38; 
Marble  Sav.  Bank  v.  Mesarvey,  101  Iowa,  285,  70  N.  W.  198;  Ingram  v.  In- 
gram, 172  111.  287,  50  N.  E.  198 ;  Rohman  v.  Gaiser,  53  Neb.  474,  73  N.  W. 
923 ;  Ransdel  v.  Moore,  153  Ind.  393,  53  N.  B.  707,  53  L.  R.  A.  753 ;  GorreU 
V.  Water  Supply  Co.,  124  N.  C.  328,  32  S.  E.  720,  46  L.  R.  A.  513,  70  Am.  St 
Rep.  598 ;  Ferris  v.  Brewing  Co.,  155  Ind.  539,  58  N.  E.  701,  52  L.  R.  A.  305 ; 
Elmer  v.  Loper,  66  N.  J.  Law,  50,  48  Atl.  550.  Cf.  Electric  Appliance  Co.  v. 
Guaranty  Co.,  110  Wis.  434,  85  N.  W.  648,  53  L.  R.  A.  609.  That  the  person 
for  whose  benefit  a  promise  is  made  may  sue  does  not  prevent  the  promisee 
from  also  suing.  Steene  v.  Aylesworth,  18  Conn.  244;  Merrlam  v.  Lumber 
Co.,  23  Minn.  314.  But  see  Seigman  v.  Hoffacker,  57  Md,  321.  See  "Cour 
tracts,"  Dec  Dig.  {Key-No.)  §  iS7;   Cent.  Dig.  §§  79S-807. 


§1    191-192)  LIMITS    OF    CONTRACTUAL    RELATION  449 

According  to  the  decisions  in  New  York  and  many  other  states, 
however,  there  must  be  something  more  than  a  mere  promise  for 
the  benefit  of  the  third  person.  Tl\e..  promise  must  be  for  his 
bejiefi,t,^°  and  there  must  be  between  the  promisee  and  the  third 
person  seeking  to  enforce  the  promise  the  relation  of  debtQ£,.,iwid 
creditor,  or  some  such  relation  as  makes  the  performance  of  the 
promise  a  ^aiisfaction  of,  some  legal  or  equitable  duty  owing  by 
the  promisee  to  such  third  person. ^^  "It  is  not  sufficient  that  the 
performance  of  the  promise  may  benefit  the  third  person.  It  must 
have  been  entered  into  for  his  benefit,  or  at  least  such  benefit  must 
be  the  direct  result  of  performance,  and  so  within  the  contempla- 
tion of  the  parties;  and,  in  addition,  the  promisee  must  have  a 
legal  interest  that  the  promise  be  performed  in  favor  of  the  party 
claiming  performance."  ^^ 

Thus,  where  a  mortgagor  conveys  the  mortgaged  premises  to 
a  purchaser,  who  in  his  deed  assumes  and  agrees  to  pay  the  mort- 

8  0  Simson  v.  Brown,  68  N.  Y.  355;  Wheat  v.  Rice,  97  N.  Y.  296;  Austin 
V.  Seligman  (C.  C.)  18  Fed.  519;  Sayward  v.  Dexter,  Horton  &  Co.,  72  Fed. 
758,  19  C.  C.  A.  176;  American  Exch.  Nat  Bank  v.  Railroad  Co.  (C.  C.)  76 
Fed.  130;  Greenwood  v.  Sheldon.  31  Minn.  254,  17  N.  W.  478;  Wright  v. 
Terry,  23  Fla.  160,  2  South.  6;  Burton  v.  Larkin,  36  Kan.  246,  13  Pac.  398, 
59  Ana.  Rep.  541 ;  Chung  Kee  v.  Davidson,  73  Cal.  522,  15  Pac.  100 ;  Crandall 
V.  Payne,  154  111.  627,  39  N.  E.  601 ;  Walsh  v.  Featherstone,  67  Minn.  103,  69 
N.  W.  811 ;  School  Dist.  of  Beatrice  v.  Thomas,  51  Neb.  740,  71  N.  W.  731 ; 
German  State  Bank  v.  Light  Co.,  104  Iowa,  717,  74  N.  W.  685 ;  Washburn  v. 
Investment  Co.,  26  Or.  436,  36  Pac.  533,  38  Pac.  620;  Newberry  Land  Co.  v. 
Newberry,  95  Va.  119,  27  S.  E.  899 ;  Thomas  Mfg.  Co.  v.  Prather,  65  Ark.  27, 
44  S.  W.  218;  Rowe  v.  Moon,  115  Wis.  566,  92  N.  W.  263.  See  "Contracts," 
Dec.  Dig.   {Kev^'o.)  §  187;    Cent.  Dig.  §§  798-807. 

siDurnherr  v.  Rau,  135  N.  Y.  219,  32  N.  E.  49;  Wheat  v.  Rice,  97  N.  Y. 
S02 ;  Lorillard  v.  Clyde,  122  N.  Y.  498,  25  N.  B.  917,  10  L.  R.  A.  113 ;  Town- 
send  V,  Rackham,  143  N.  Y.  516,  38  N.  E.  731  (but  see  Buchanan  v.  Tilden, 
158  N.  Y.  109.  52  N.  E.  724,  44  L.  R.  A.  170,  70  Am.  St.  Rep.  454)  ;  Jefferson 
V.  Asch,  53  Minn.  446,  55  N.  W.  604,  25  L.  R.  A.  257,  39  Am.  St.  Rep.  618; 
Union  Railway  Storage  Co.  v.  McDermott,  53  Minn.  407,  55  N.  W.  606; 
Thomas  Mfg.  Co.  v.  Prather,  65  Ark.  27,  44  S.  W.  218.  And  see  Coleman  v. 
Whitney,  62  Vt.  123,  20  Atl.  322,  9  L.  R.  A.  517 ;  Lovejoy  v.  Howe,  55  Minn. 
353,  57  N.  W.  57;  Barnes  v.  Insurance  Co.,  56  Minn.  38,  57  N.  W.  314,  45 
Am.  St  Rep.  438;  Montgomery  v.  Rief,  15  Utah,  495,  50  Pac.  623;  German 
State  Bank  v.  Light  Co.,  104  Iowa,  717,  74  N.  W.  685 ;  Feldman  v.  McGuire. 
34  Or.  309,  55  Pac.  872;  Street  v.  Goodale,  77  Mo.  App.  318;  Frerkiug  v. 
Thomas,  64  Neb.  193,  89  N.  W.  1005;  Merchants'  Union  Trust  Co.  v.  New 
Philadelphia  Graphite  Co.  (Del.  Ch.)  83  Atl.  520;  Eau  Clalre-St  Louis  Lum- 
ber Co.  V.  Banks,  136  Mo.  App.  44,  117  S.  W.  611,  See  "Contracts,"  Dec.  Dig 
{Key-No.)   §  187;    Cent.  Dig.  §§  798-807. 

s2  Dumherr  v.  Rau,  135  N.  Y.  219,  32  N.  E.  49.     See  "Contracta,"  Dec.  Dig. 
{Key-No.)  §  187;    Cent.  Dig.  §§  798-807. 
Clabk  Cont.(3d  Ed,)— 29 


450  OPERATION  OF  CONTRACT  (Ch.  9 

gage,  it  is  generally  held  that  the  mortgagee  may  maintain  an 
action  against  the  grantee  upon  the  covenant  to  pay ;  *^  but  if 
the  grantor  is  not  personally  bound  to  pay  a  mortgage  upon  the 
granted  premises,  as  where  he  has  purchased  subject  to  the  mort- 
gage without  assuming  it,  his  grantee  does  not  by  assuming  the 
mortgage  become  personally  liable  to  the  mortgagee.^*  It  is  very 
generally  held  that  the  promisee  can  release  the  promisor  from 
his  obligation  before  the  third  person  for  whose  benefit  the  prom- 
ise was  made  has  assented  to  and  adopted  it,^"  but  not  after- 
wards.^' 

83  Burr  V.  Beers,  24  N.  T.  178,  SO  Am.  Dec.  327;  Bay  v.  Williams,  112  111. 
91,  1  N.  E.  340,  54  Am.  Rep.  209;  Follausbee  v,  Johnson,  28  Minn.  311,  9 
N,  W.  882 ;  Flint  v.  Cadenasso,  64  Cal.  83.  28  Pac,  62 ;  Stephenson  v.  Elliott, 
53  Kan.  550.  36  Pac.  980;  Starbird  v.  Cranston,  24  Tolo.  20,  48  Pac.  652; 
Webster  v.  Fleming.  178  111.  140.  52  N.  E.  975 ;  Kehoe  v.  Patton,  23  R.  J.  360, 
50  Atl.  655.  See  note  36,  infra.  See  "Mortgages,"  Dec.  Dig.  {Key-'No.)  % 
282;    Cent.  Dig.  §§  740-755. 

84Vrooman  v.  Turner,  69  N.  Y.  280,  25  Am.  Rep.  195;  Brown  v.  Stillman, 
43  Minn.  126,  45  N.  W.  2;  Nelson  v.  Rogers,  47  Minn.  103,  49  N.  W.  526; 
Young  Men's  Christian  Ass'n  of  Portland  v.  Croft,  34  Or.  106,  55  Pac.  439, 
75  Am.  St.  Rep.  568 ;  Eakin  v.  Shultz,  61  N.  J.  Eq.  156,  47  Atl.  274.  Contra, 
Marble  Sav.  Bank  v.  Mesarvey,  101  Iowa,  285,  70  N.  W.  198;  Enos  v.  San- 
ger, 96  Wis.  150,  70  N.  W.  1069,  37  L.  R.  A.  862,  65  Am.  St.  Rep.  38.  See 
"Mortgages,"  Dec.  Dig.   {Key-No.)   §  2S2;    Cent.  Dig.  §§  740-755. 

SB  Kelly  V.  Roberts,  40  N.  Y.  432;  Brewer  v.  Mauerer,  38  Ohio  St.  543,  43 
Am.  Rep.  436;  Gilbert  v.  Sanderson,  56  Iowa,  349,  9  N.  W.  293,  41  Am.  Rep. 
103;  Comley  v.  Dazian,  114  N.  Y.  161,  21  N.  E.  135.  See  "Mortgages,"  Dec. 
Dig.  {Key-No.)  §  2S2 ;    Cent.  Dig.  §§  740-755. 

«6Bassett  v.  Hughes,  43  Wis.  319;  Gifford  v.  Corrigan,  117  N.  Y.  257,  22 
N.  E.  756,  6  L.  R.  A.  610,  15  Am.  St.  Rep.  508;  New  York  Life  Ins.  Co.  v. 
AitkiB,  125  N.  Y.  660,  26  N.  E.  732;  Dodge's  Adm'r  v.  Moss,  82  Ky.  441; 
Etscheid  v.  Baker,  112  Wis.  129,  88  N.  W.  52.  And  see  Clark  v.  Fisk,  9  Utah, 
94,  33  Pac.  248.  But  some  courts  hold  that  the  promise  invests  the  third 
person  with  an  immediate  right,  which  the  promisee  cannot  release.  Bay  v. 
Williams,  112  111.  91,  1  N.  E.  340,  54  Am.  Rep.  209;  Starbird  v.  Cranston, 
24  Colo.  20,  48  Pac.  652;  Tweeddale  v.  Tweeddale,  116  Wis.  517,  93  N.  W. 
440,  61  L.  R.  A.  509,  96  Am.  St.  Rep.  1003.  In  states  which  do  not  recognize 
the  right  of  a  third  person  for  whose  benefit  the  promise  is  made  to  enforce 
the  contract,  he  may  sometimes  avail  himself  of  the  promise  in  equity  by 
subrogation  to  the  rights  of  the  promisee,  as  in  the  case  of  a  mortgagee 
where  a  grantee  of  a  mortgagor  has  assumed  the  mortgage.  Such  is  the  rule 
in  the  federal  courts.  Keller  v.  Ashford,  133  U.  S.  610,  10  Sup.  Ct.  494,  33 
L.  Ed.  667 ;  Knapp  v.  Insurance  Co.,  85  Fed.  329,  29  C.  C.  A.  171,  40  L.  R.  A. 
861.  Here  the  rights  of  the  mortgagee  against  the  grantee  are  necessarily 
defeated  if  the  grantor  releases  the  grantee  from  his  covenant,  unless  the  re- 
lease is  in  fraud  of  creditors.  See  Jones,  Mtg.  §  763  ;  Crowell  v.  Hospital, 
27  N.  J.  Eq.  650;  Youngs  v.  Public  Schools,  31  N.  J.  Eq.  290;  O'Neill  v. 
Clark,  33  N.  J.  Eq.  444.  See  "Mortgages,"  Dec.  Dig.  (Key-No.)  §  282;  Cent. 
Dig.  §§  740-755. 


§§    191-192)  LIMITS    OF    CONTRACTUAL    RELATION  451 

Same — Contracts  under  Seal 

In  some  of  the  states  it  is  held  that  the  doctrine  allowing  suit 
on  a  contract  by  a  third  person  for  whose  benefit  it  is -made  applies 
as  well  to  covenants  or  promises  under  seal  as  to  simple  con- 
tracts.^^ In  other  states  the  contrary  has  been  held,  on  the  ground 
that  assumpsit  will  not  lie  on  a  covenant  under  seal,  and  that  it 
is  only  an  action  of  assumpsit  that  will  lie  by  a  person  for  whose 
benefit  a  promise  has  been  made  to  another.^' 

Same — Statutory  Exceptions 

In  several  states  it  is  expressly  provided  by  statute  that  "a 
contract  made  expressly  for  the  benefit  of  a  third  person  may  be 
enforced  by  him  at  any  time  before  the  parties  thereto  rescind 
it."  ^^  And  similar  provisions  giving  the  beneficiary  a  right  to 
sue  upon  a  contract  made  for  his  benefit  exist  in  other  states.** 

By  statute,  in  many  of  the  states — no  doubt  in  all  the  code  states 
— it  is  expressly  provided  that  every  action  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  except  in  certain  cases ;  and 
un^r  such  a  provision  it  has  been  held  that  the  person  for  whose 
benefit  a  contract  is  made  may  sue  thereon.*^ 

8T  Bassett  v.  Hughes.  43  Wis.  319.  And  see  Gifford  v.  Corrigan,  117  N.  T. 
257,  22  N.  E.  756,  6  L.  R.  A.  610,  15  Am.  St.  Rep.  508 ;  Coster  v.  City  of  Al- 
bany, 43  N.  Y.  399;  Riordan  v.  Presbyterian  Church,  6  Misc.  Rep.  84.  26 
N.  Y.  Supp.  38 ;  Kimball  v.  Noyes,  17  Wis.  695 ;  McDowell  v.  Laev,  35  Wis. 
171;  Webster  v.  Fleming,  ITS  111.  140,  52  N.  E.  975.  Cf.  Harms  v.  McCor- 
mick,  132  111.  104,  22  N.  E.  511.  See  ^'Contracts,"  Deo.  Dig.  (Key-No.)  §  187; 
Cent.  Dig.  §§  198-801. 

3  8  Hinkley  v.  Fowler,  15  Me.  285.  And  see  Cocks  v.  Varney,  45  N.  J.  Eq. 
72,  17  Atl.  108 ;  Seipnan  v.  Hoffacker,  57  Md.  321 ;  Robbins  v.  Ayres,  10  Mo. 
538,  47  Am.  Dec.  125 ;  Baldwin  v.  Emery,  89  Me.  496,  36  Atl.  994.  Cf.  Styles 
V.  F.  R.  Long  Co.,  67  N.  J,  Law,  413,  51  Atl.  710.  See  "Contracts,"  Dec, 
Dig.  (Key-No.)  §  181;   Cent.  Dig.  §§  198-801. 

S9  Civ.  Code  Cal.  §  1559 ;  Civ.  Code  N.  D.  §  4688.  And  see  15  Harv.  L.  Rev. 
778;  Eastman  Land  &  Investment  Co.  v.  Long-Bell  Lumber  Co.,  30  Okl.  555, 
120  Pa.  270.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  181;  Cent.  Dig.  §§  758- 
807. 

4  0  Civ.  Code  La.  art.  1890.  Code  Prac.  La.  art.  35;  Code  W.  Va.  c.  71,  §  2; 
Edwards  v.  National  Window  Glass  Jobbers'  Ass'n  (N.  J.  Sup.)  68  Atl.  800. 
And  see  City  of  Newport  News  v.  Potter,  122  Fed.  321,  58  C.  C.  A.  483.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)  §  iS7;    Cent.  Dig.  §§  198-801. 

*i  Bliss,  Code  PI.  §  241;  Pomeroy,  Rem.  &  Rem.  R.  §  139.  See  Paducah 
Lumber  Co.  v.  Water  Supply  Co.,  89  Ky.  340,  12  S.  W.  554,  7  L.  R.  A.  77,  25 
Am.  St.  Rep.  536;  Ellis  v.  Harrison,  104  Mo.  270,  16  S.  W.  198;  Stevens  v. 
Flannagan,  131  Ind.  122,  30  N.  E.  898;  Starbird  v.  Cranston,  24  Colo.  20,  48 
Pac.  052 ;  Faust  v.  Faust,  144  N.  C.  383,  57  S.  E  22.  But  it  seems  that  a  third 
person  must  estil)lish  a  legal,  or  at  least  an  equitable,  right  to  enforce  the  con- 
tract independently  of  this  provision.     Ante,  p.  ,  and  cases  cited  in  note 

;   Anson,  Contr.  (8th  Ed.)  282,  note  by  Prof.  Huff  cut.    "The  difhcult  ques- 
tion Is  whether  the  third  person  is  the  real  party  In  Interest."    Professor  Wll- 


452  OPERATION  OF  CONTRACT  (Ch.  9 

Action  by  Third  Party  for  Many  Joint  Contractors 

If  a  person  and  a  group  of  persons,  such  as  an  unincorporated 
society  should  enter  into  a  contract,  it  might  be  convenient  that  a 
third  person  should  be  able  to  sue  on  behalf  of  the  group.  The 
general  rule,  however,  that  a  contract  cannot  confer  rights  on  per- 
sons not  parties  to  it,  applies.  In  a  case  in  which  the  managers  of 
an  association,  under  powers  of  attorney  executed  by  the  members, 
sued  upon  a  contract  entered  into  by  the  association,  it  was  held 
that  they  could  not  maintain  the  action,  "for  the  simple  reason 
*  *  *  that  the  proper  person  to  bring  an  action  is  the  person 
whose  right  has  been  violated."  "This  is  an  attempt,"  it  was  fur- 
ther said,  "to  do  what  has  been  frequently,  but  fruitlessly,  attempt- 
ed before,  viz.,  to  get  rid  of  the  difficulty  of  a  large  number  of  people 
suing  in  their  own  names — to  appoint  a  public  officer  without  obtain- 
ing an  act  of  parliament  or  a  charter  of  incorporation.*^ 

In  some  of  the  states,  statutes  have  been  enacted  expressly  pro- 
viding that  where  the  parties  are  very  numerous,  and  it  would  be 
impracticable  to  bring  them  all  before  the  court,  one  or  more  may 
sue  or  defend  for  the  benefit  of  all.** 


ASSIGNMENT  OF  CONTRACTS— IN  GENERAL 

193.  Under  some  circumstances,  a  person  not  a  party  to  a  contract 
may  take  the  place  of  one  of  the  parties.  This  substitution 
is  called  assignment  of  the  contract.    It  may  be  either 

(a)  By  the  voluntary  act  of  the  parties,  or 

(b)  By  operation  of  law. 

We  have  just  seen  that,  subject  to  certain  exceptions,  a  contract 
cannot  affect  any  but  the  parties  to  it,  either  by  imposing  liabilities 
or  conferring  rights  on  them.  The  original  parties  to  a  contract, 
however,  may,  under  certain  circumstances,  drop  out,  and  others 
may  take  their  places.  The  operation  by  which  this  change  in  the 
contractual  relation  is  effected  is  termed  an  assignment  of  the  con- 
tract. 

liston  in  15  Harv.  L.  Rev.  778.  See  "Parties,"  Dec.  Dig.  (Key-No.)  §  6;  Cent. 
Dig.  §§  6,  7;  "Contracts,"  Cent.  Dig.  §  1597. 

42  Gray  v.  Pearson,  L.  R.  5  C.  P.  568.  See  Anson,  Cent  (8th  Ed.)  230.  See 
"Parties,"  Dec.  Dig.  (Key-No.)  §§  10-12;  Cent.  Dig.  §  12. 

48  Thames  v.  Jones,  97  N.  C.  121,  1  S.  E.  692;  Gibson  v.  Trust  Co.,  58  Hun, 
443,  12  N.  Y.  Supp.  444 ;  Gieske  v.  Anderson,  77  Cal.  247,  19  Paa  421 ;  Piatt 
V.  Colvln,  50  Ohio  St.  703,  36  N.  E.  735 ;  Alexander  v.  Gish,  88  Ky.  13,  9  S. 
W.  801 ;  Lilly  v.  Tobbein  (Mo.  Sup.)  13  S.  W.  1060.  See  "Parties,"  Dec.  Dig. 
(Key-No.)  §§  10-12;  Cent.  Dig.  §  12. 


g    194)  ASSIGNMENT    OF    CONTRACTS  453 


SAME— ASSIGNMENT  OF  LIABILITIES  BY  ACT  OF  PAR- 
TIES 

194.  A  person  cannot  assign  his  liabilities  under  a  contract. 

APPARENT  EXCEPTIONS— (a)  He  may  so  assign  with  the 
consent  of  the  other  party  to  the  contract. 

(b)  In  contracts  to  do  work  involving  no  personal  skill  or  per- 

sonal qualifications,  the  party  may  have  the  work  done  by 
another,  but  he  remains  liable  if  it  is  not  properly  done. 

(c)  When  an  interest  in  land  is  transferred,  certain  liabilities  at- 

taching to  the  enjoyment  of  the  interest  pass  with  it. 

A  person  cannot  assign  his  liabilities  under  a  contract,  or,  to  put 
the  matter  from  the  point  of  view  of  the  other  party  to  the  contract, 
a  person  cannot  be  compelled  to  accept  performance  of  the  contract 
from  a  person  who  was  not  originally  a  party  to  it.  The  reason  for 
the  rule  lies  not  only  in  the  right  of  a  person  to  know  to  whom  he  is 
to  look  for  the  satisfaction  of  his  rights  under  a  contract,  but  in  his 
light  "to  the  benefit  which  he  contemplates  from  the  character, 
credit,  and  substance  of  the  person  with  whom  he  contracts."  ** 

The  rule  is  well  illustrated  by  a  case  in  which  one  Sharpe  let  a 
carriage  to  the  defendant,  at  a  yearly  rent,  for  five  years,  undertak- 
ing to  paint  it  every  year  and  keep  it  in  repair.  One  Robson  was, 
in  fact,  the  partner  of  Sharpe,  but  the  defendant  contracted  with 
Sharpe  alone.  After  three  years,  Sharpe  retired  from  business,  and 
the  defendant  was  informed  that  Robson  was  thenceforth  answer- 
able for  the  repair  of  the  carriage  and  would  receive  the  rent.  The 
defendant  refused  to  accept  the  substitution,  and  it  was  held  that 
he  could  not  be  sued  upon  the  contract.  "The  defendant,"  it  was 
said,  "may  have  been  induced  to  enter  into  this  contract  by  reason 
of  the  personal  confidence  which  he  reposed  in  Sharpe.  ♦  ♦  * 
The  latter,  therefore,  having  said  it  was  impossible  for  him  to  per- 
form the  contract,  the  defendant  had  a  right  to  object  to  its  being 

44  Humble  v.  Hunter,  12  Q.  B.  310.  And  see  ARKANSAS  VAI^.  SMELTING 
CO.  V.  BELDEN  MIN.  CO.,  127  U.  S.  379,  8  Sup.  Ct.  1308,  32  L.  Ed.  246, 
Throckmorton  Cas.  Contracts,  320;  Chapin  v.  Longworth,  31  Ohio  St.  421; 
Rappleye  v.  Seeder  Co.,  79  Iowa,  220,  44  N.  W.  3G3,  7  L.  R.  A.  139 ;  Burger  v. 
Rice,  3  Ind.  125;  Bethlehem  v.  Annis,  40  N.  H.  34,  77  Am.  Dec.  700;  Griswold 
V.  Railroad  Co.,  18  Mo.  App.  52;  Lan.sdcn  v.  McCarthy,  45  Mo.  106;  Palo 
Pinto  Co.  V.  Gano,  60  Tex.  249;  Donelson  v.  Polk,  04  Md.  501,  2  Atl.  824; 
Stewart  v.  Railroad  Co.,  102  N.  Y.  601,  8  N.  E.  200,  55  Am.  Rep.  844;  Sprankle 
V.  Trulove,  22  Ind.  App.  577,  54  N.  E.  461 ;  post,  p.  458,  and  cases  there  cited. 
See  "Assignment,"  Dec.  Dig.  (Eey-yo.)  §§  18,  19;   Cent.  Dig.  §§  25S1. 


454  OPERATION  OF  CONTRACT  (Ch.  9 

performed  by  any  other  person,  and  to  say  that  he  contracted  with 
Sharpe  alone,  and  not  with  any  other  person."  *' 

Exceptions  to  the  Rule 

The  exceptions  to  this  rule  are  apparent  rather  than  real.  A  per- 
son may  assign  the  liabilities  imposed  upon  him  by  a  contract 
which  he  has  made  if  the  other  party  to  the  contract  consents. 
This,  however,  is,  in  effect,  a  new  contract.  It  is  a  rescission  by 
agreement  of  the  old  contract,  and  the  substitution  of  a  new  one, 
in  which  the  same  acts  are  to  be  performed  by  different  parties. 

Another  apparent  exception  is  in  this,  namely,  that  if  a  person 
undertakes  to  do  work  for  another  which  requires  no  special  skill, 
and  he  has  not  been  selected  for  the  work  with  reference  to  any 
personal  qualifications,  he  may  have  the  work  done  by  some  equal- 
ly competent  third  person.  This,  however,  is  not  an  assignment  of 
his  liabilities,  for  he  does  not  cease  to  be  liable  if  the  work  is  not 
done  in  accordance  with  the  contract.*' 

The  third  apparent  exception  is  where  an  interest  in  land  is  trans- 
ferred. In  such  case,  liabilities  attaching  to  the  enjoyment  of  the 
interest  pass  with  it.    This  will  be  discussed  presently. 


SAME— ASSIGNMENT  OF  RIGHTS  BY  ACT  OF  PARTIES 

195.  AT  COMMON  LAW.     Rights  arising  out  of  a  contract  can- 
not be  assigned  at  common  law  except — 

EXCEPTIONS — (a)  By  an  agreement  between  the  original  par- 
ties and  the  intended  assignee,  which  is  subject  to  all  the 
rules  for  the  formation  of  a  valid  contract. 

(b)  By  the  rules  of  the  law  merchant  in  the  case  of  negotiable 
instruments. 

45Robson  V.  Drummond,  2"  Barn.  &  Adol.  303.  BOSTON  ICE  CO.  v.  POT- 
TER, 123  Mass.  28,  25  Am.  Rep.  9,  Throckmorton  Cas.  Contracts,  305.  Cf. 
British  Waggon  Co.  v.  Lea,  5  Q.  B.  Div.  149.  And  see  Hand  v.  Evans  Marble 
Co.,  88  Md.  226,  40  Atl.  899;  Atlantic  &  N.  C.  R.  Co.  v.  Atlantic  &  N.  C.  Co., 
147  N.  C.  368,  61  S.  E.  185,  23  L.  R.  A.  (N.  S.)  223,  125  Am.  St.  Rep.  550,  15 
Ann.  Cas.  363,  in  the  latter  which  it  is  said,  per  Hoke,  J.,  in  reference  to  Rob- 
son  V.  Drummond  and  BOSTON  ICE  CO.  v.  POTTER,  supra:  "Certainly,  nei- 
ther one  of  these  cases  can,  it  seems  to  us,  be  supported  except  on  the  theory 
that  there  were  terms  in  the  contract  importing  reliance  on  the  personal  skill, 
business  standing  or  methods  of  the  other  contracting  party."  See,  also,  to 
the  same  effect,  article  by  Prof.  F.  C.  Woodward  in  18  Harv.  L.  Rev.  23.  See 
"Assignments;'  Dec.  Dig.  (Key-No.)  §§  18,  19;   Cent.  Dig.  §§  25-Sl. 

4 «  British  Waggon  Co.  v.  Lea,  5  Q.  B.  Div.  149;  Rochester  Lantern  Co.  v. 
Press  Co.,  135  N.  Y.  209,  31  N.  E.  1018.  See  "Assignments,"  Dec.  Dig.  {Key- 
No.)  §§  18,  19;    Cent.  Dig.  §§  25-Sl. 


§§    195-197)  ASSIGNMENT    OF    CONTRACTS  455 

(c)  An  assignment  in  equity  is  so  far  recognized  at  common  law 
as  to  permit  the  assignee  to  sue  thereon  in  the  name  of  the 
assignor  or  his  representatives. 

196.  IN  EQUITY.     A  chose  in  action,  or  rights  under  a  contract, 

may  be  assigned  in  equity  whenever  the  contract  is  not  for 
exclusively  personal  services,  and  does  not  involve  person- 
al credit,  trust,  and  confidence.     But — 

CONDITIONS — (a)   Notice  is  necessary  to  bind  the  debtor  or 

person  liable. 
(b)  The  assignee  takes  subject  to  all  such  defenses  as  would 

have  prevailed  against  the  assignor. 

197.  BY  STATUTE.     There  are  statutes  in  most  states  allowing 

the  assignment  of  choses  in  action,  and  a  suit  at  law  by  the 
assignee  in  his  own  name. 

At  Common  Law 

At  common  law,  apart  from  the  customs  of  the  law  merchant, 
the  rights  or  benefits  arising  out  of  a  contract,  or,  as  it  is  generally 
termed,  a  chose  in  action,  cannot  be  assigned  so  as  to  entitle  the 
assignee  to  sue  upon  it  in  his  own  name.*^  This  is  a  settled  and 
inflexible  rule,  and  its  effect  cannot  be  avoided  by  stipulations  of 
the  parties,  as  by  an  express  provision  in  the  contract  to  the  effect 
that  it  may  be  assigned,  provided,  of  course,  the  stipulation  does 
not  render  the  contract  a  negotiable  instrument,  and  so  bring  it 
within  the  law  merchant.*' 

As  will  be  seen,  however,  the  assignment  creates  rights  in  equity, 
and  the  common  law  so  far  takes  cognizance  of  these  equitable 
rights  as  to  permit  the  assignee  to  ust:  the  name  of  the  assignor,  or 
his  representative  if  the  assignor  be  dead,  as  trustee  for  the  as- 
signee, so  that  he  may  sue  on  the  contract  in  their  name.  An  equi- 
table assignment  of  a  chose  in  action  is  in  the  nature  of  a  declara- 

4T  Leake,  Cont.  601;  Co.  Litt.  214a,  232b;  2  Bl.  Coram.  442;  Greenhy  v. 
Wilcocks,  2  Johns.  (N.  Y.)  1,  3  Am.  Dec.  379;  Hay  v.  Green,  12  Cush.  (Mass.) 
2S2;  Hunt  v.  Mann,  132  Mass.  53;  Glenn  v.  Marbury,  145  U.  S.  499,  12  Sup. 
Ct.  914,  36  L.  Ed.  790.  "The  origin  of  the  rule  was  attributed  by  Coke  to  the 
'wisdom  and  policy  of  the  founders  of  our  law'  in  discouraging  maintenance 
and  litigation;  but  there  can  be  little  or  no  doubt  that  it  was  in  truth  a  log- 
ical consequence  of  the  primitive  view  of  a  contract  as  creating  a  strictly  per- 
sonal obligation  between  the  creditor  and  the  debtor."  Tol.  Cont.  206.  See 
"Assignments,"  Dec.  Dig.  {Key-No.)  §  23;   Cent.  Dig.  §§  //O,  Jil. 

48  COOLIDGE  V.  RUGGLES,  15  Mass.  387,  Throckmorton  Caa  Contracts, 
324 ;  Weidler  v.  Kauffman,  14  Ohio,  455 ;  Legro  v.  Staples.  16  Me.  252 ;  Little 
V.  Bank,  2  Hill  (N.  Y.)  425;  Id.,  7  Hill  (N.  Y.)  359;  People  v.  Gray.  23  Cal. 
125.     See  "Assionmenta,"  Dec.  Dig.  {Key-No.)  §§  22,  23;   Cent.  Dig.  §§  35-^1. 


456  OPERATION  OF  CONTRACT  (Ch.  9 

tion  of  trust  by  the  party  having  the  legal  right,  and  an  agreement 
on  his  part  to  permit  the  assignee  to  make  use  of  his  name  to  en- 
force it.*' 

Strictly  speaking,  the  only  mode  by  which  the  rights  under  a  con- 
tract can  be  really  transferred  at  law  is,  not  by  assignment  at  all. 
but  by  means  of  a  substituted  agreement.    If  A.  owes  B.  $100,  and 

B.  owes  C.  $100,  it  may  be  agreed  between  all  three  that  A.  shall 
pay  C.  instead  of  paying  B.,  so  that  B.  thereby  terminates  his  legal 
relations  with  both  parties.  In  such  case  the  consideration  for  A.'s 
promise  is  the  discharge  of  B. ;  the  consideration  for  B.'s  discharge 
of  A.  is  the  extinguishment  of  his  debt  to  C. ;  the  consideration  for 
C.'s  promise  is  the  substitution  of  A.'s  liability  for  that  of  B.  This 
is  known  as  a  "novation."  ''"  To  effect  such  a  change  of  relations, 
there  must  be  ascertained  sums  due  from  A.  to  B.,  and  from  B.  to 
C. ;  and  it  is  further  essential  that  there  shall  be  a  definite  agree- 
ment between  the  parties,  for  it  is  the  promise  of  each  which  is  the 
consideration  for  the  promise  of  the  others.  It  would  not  be 
enough  for  A.  to  say  to  C,  "I  will  pay  you  instead  of  B.,"  and  to 
afterwards  suggest  the  arrangement  to  B.,  and  receive  his  assent.''^ 
Nor  would  it  be  enough  for  B.  to  authorize  A.  in  writing  to  pay  to 

C,  and  for  A.  to  acknowledge  the  paper  in  writing."*'  In  neither  of 
these  cases  would  there  be  such  an  agreement  between  all  three 
persons  as  to  amount  to  a  discharge  by  B.  of  the  debt  due  by  him  to 
A.  There  would,  therefore,  be  no  consideration  for  A.'s  promise  to 
pay  C,  so  as  to  support  an  action  by  C.  against  him.  In  an  action 
under  the  circumstances  of  the  second  case  mentioned  above  by  C. 
against  A.  it  was  said:  "There  are  two  legal  principles  which,  so  far 
as  I  know,  have  never  been  departed  from.  One  is  that,  at  common 
law,  a  debt  cannot  be  assigned  so  as  to  give  the  assignee  a  right  to 
sue  for  it  in  his  own  name,  except  in  the  case  of  a  negotiable  in- 
strument; and,  that  being  the  law,  it  is  perfectly  clear  that  B.  could 
not  assign  to  the  plaintiff  the  debt  due  from  the  defendant  to  him. 
♦     ♦     *     The. other  principle  which  would  be  infringed  by  allowing 


*9  Leake,  Cont.  602;  Welch  v.  Mandeville,  1  Wheat.  233,  4  L.  Ed.  79;  Hal- 
loran  v.  Whitcomb,  43  Vt.  306 ;  Fay  v.  Guynon,  131  Mass.  31 ;  Frear  v.  Evert- 
eon,  20  Johns.  (N.  Y.)  142;  Parsons  v.  Woodward,  22  N.  J.  Law,  196;  Mc- 
Wiliiams  v.  Webb,  32  Iowa,  577 ;  Webb  v.  Steele,  13  N.  H.  230,  See  "Assign- 
ments;' Dec  Dig.  (Key-No.)  §  ^S;   Cent.  Dig.  §§  85-111. 

60  Post,  p.  528. 

61  Cuxon  V.  Chadley,  3  Barn.  &  C.  591.  See  "Contracts,"  Deo.  Dig.  (Key- 
No.)  §  2J,0;   Gent.  Dig.  §  1125. 

62  Liversidge  v.  Broadbent,  4  Hurl.  &  N.  603.  See  "Contracts,"  Deo.  Dig. 
(Key-No.)  §  2^0;   Cent.  Dig.  §  1125. 


§§    195-197)  ASSIGNMENT    OF    CONTRACTS  457 

this  action  to  be  maintained  is  the  rule  of  law  that  a  bare  promise 

cannot  be  the  foundation  of  an  action."  ^^ 

Same — Recognition  of  Equitable  Assignment  in  Law 

Courts  of  common  law  recognize  the  validity  of  equitable  assign- 
ments for  other  purposes  than  to  permit  the  assignee  to  sue  at  law 
in  the  name  of  the  assignor.  An  assignment  of  a  chose  in  action 
has  always  been  held  a  good  consideration  for  a  promise. °*  Thus, 
the  benefit  of  a  contract  may  be  sold,  and  the  assignment  of  the 
contract  forms  a  valuable  consideration  for  a  promise  to  pay  the 
price,  which  may  be  recovered  in  an  action  at  law."  The  forbear- 
ance by  the  assignee  of  a  debt  to  sue  the  debtor  is  a  good  consider- 
ation for  an  express  promise  by  the  debtor  to  pay  the  assignee,  and 
on  this  promise  the  assignee  may  maintain  an  action  in  his  own 
name.^*  He  must  sue  on  the  debtor's  promise  to  him,  and  not  on 
the  promise  to  the  assignor  assigned  to  him. 

Rule  in  Equity 

Equity  permits  the  assignment  of  certain  contracts  subject  to 
certain  conditions.  As  a  rule,  however,  the  assignee  of  a  chose  in 
action  must  seek  his  remedy  at  law,  by  an  action  in  the  name  of  his 
assignor,  and  cannot,  merely  because  his  interest  is  an  equitable 
one,  bring  a  suit  in  equity  for  the  recovery  of  his  demand."^  "A 
court  of  equity  will  not  entertain  a  bill  by  the  assignee  of  a  strictly 
legal  right,  merely  because  he  cannot  bring  an  action  at  law  in  his 
own  name,  nor  unless  it  appears  that  the  assignor  prevents  and 
prohibits  such  an  action  from  being  brought  in  his  name,  or  that  an 
action  so  brought  would  not  afford  an  adequate  remedy  at  law."  " 

68  Liversidge  v.  Broadbent,  4  Hurl.  &  N.  603.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  2^0;   Cent.  Dig.  §  ri25. 

8  4  Leake,  Cont.  605;  Master  v.  Miller,  4  Term  R.  341;  Skinner  v.  Somes, 
14  Mass.  107.  See  "Assignments;'  Dec.  Dig.  {Key-No.)  §§  48-52;  Cent.  Dig.  §§ 
SS-111,  133. 

5  5  Price  V.  Seaman,  4  Barn.  &  C.  525.  See  "Assignments,"  Dec.  Dig.  {Key- 
No.)  §§  48-52;   Cent.  Dig.  §§  88-111,  133. 

66  Morton  v.  Burn,  7  Adol.  &  E.  19;  Fenner  v.  Mears,  2  W.  Bl.  1209;  Skin- 
ner V.  Somes,  14  Mass.  107 ;  Crocker  v.  Whitney,  10  Mass.  316 ;  Jessel  v.  In- 
surance Co.,  3  Hill  (N.  Y.)  88;  Compton  v.  Jones,  4  Cow.  (N.  Y.)  13;  Onion  v. 
Paul,  1  Har.  &  J.  (Md.)  114.  See  "Assignments,"  Dec.  Dig.  {Key-No.)  §§  48- 
52;  Cent.  Dig.  §§  88-111,  133. 

5T  CARTER  V.  INSURANCE  CO.,  1  Johns.  Ch.  (N.  Y.)  463,  Throckmorton 
Cas.  Contracts,  326 ;  Hayward  v.  Andrews.  106  U.  S.  672,  1  Sup.  Ct  544,  27 
L.  Ed.  271 ;  New  York  Guaranty  &  Indemnity  Co.  v.  Water  Co.,  107  U.  S.  205, 
2  Sup.  Ct.  279,  27  L.  Ed.  484;  Adair  v.  Winchester,  7  Gill  &  J.  (Md.)  114; 
Smiley  v.  Bell,  Mart.  &  Y.  (Tenn.)  378,  17  Am.  Dec.  813;  Moseley  v.  Boush,  4 
Rand.'  (Va.)  392.  See  "Assignments,"  Dec.  Dig.  {Key-No.)  §  120;  Cent.  Dig. 
{§  206-209;  "Contracts,"  Cent.  Dig.  §  1595. 

•  »  Walker  v.  Brooks,  125  Mass.  241.     See  Smith  v.  Bates  Machine  Co.,  182 


458  OPERATION  OF  CONTRACT  (Ch.  9 

When,  however,  a  suit  in  equity  is  maintainable,  it  may  be  main- 
tained by  the  assignee  in  his  own  name. 

As  we  shall  presently  see,  there  are  statutes  in  most  of  the  states 
authorizing  the  assignment  of  choses  in  action,  so  as  to  give  the 
assignee  a  right  to  sue  at  law  in  his  own  name.  Where  the  statute 
is  general,  or  does  not  provide  otherwise,  it  is  held  that  it  allows 
such  assignments  at  law  as  were  formerly  allowed  in  equity,  and 
leaves  them  subject  at  law  to  the  same  rules  as  governed  them  in 
equity.  What  we  shall  now  say,  therefore,  in  regard  to  assign- 
ments in  equity,  will  generally  apply  to  assignments  at  law  author- 
ized by  these  statutes. 

Same — What  is  Assignable 

It  may  be  said  generally  that  anything  which  directly  or  indirect- 
ly involves  a  right  of  property  is  assignable,^"  with  the  exception 
that  rights  when  coupled  with  liabilities  under  an  executory  con- 
tract for  personal,  services,  or  under  contracts  otherwise  involving 
personal  credit,  trust,  or  confidence  cannot  be  assigned.®"     Such 

111.  1G6,  55  N.  E.  69.     See  "Equity,"  Dec.  Dig.  {Key-No.)  §  46;    Cent.  Dig.  §§ 
151-163. 

59  Mulhall  V.  Quinn,  1  Gray  (Mass.)  105,  61  Am.  Dec.  414;  Harbord  v. 
Cooper,  43  Minn.  466,  45  N.  W.  860;  Dayton  v.  Fargo,  45  Mich.  153,  7  N.  W. 
758;  Grant  v.  Ludlow,  8  Ohio  St.  1;  Burkett  v.  Moses,  11  Rich.  (S.  C.)  432; 
Louisville  R.  Co.  v.  Goodbar,  88  Ind.  213 ;  La  Rue  v.  Groezinger,  84  Cal.  281, 
24  Pac.  42,  45,  18  Am.  St.  Rep.  179 ;  Francisco  v.  Smith,  143  N.  Y.  488,  38  N. 
E.  980 ;  Up  River  Ice  Co.  v.  Denier,  114  Mich.  296,  72  N.  W.  157,  68  Am.  St. 
Rep.  480;  Fleckenstein  Bros.  Co.  v.  Fleckenstein  (N.  J.  Ch.)  53  Atl.  1043;  At- 
lantic &  N.  C.  R.  Co.  V.  Atlantic  &  N.  C.  Co.,  147  N.  C.  368,  61  S.  E.  185,  23 
L.  R.  A.  (N.  S.)  223,  125  Am.  St.  Rep.  550,  15  Ann.  Cas.  363  (quoting  with  ap- 
proval the  statement  of  the  text  from  Clark  on  Contracts  [2d  Ed.]  p.  364,  and 
containing  full  discussion)  ;  Liberty  Wall-Paper  Co.  v.  Stoner  Wall-Paper  Mfg. 
Co.,  59  App.  Div.  353,  69  N.  Y.  Supp.  355  [affirmed  170  N.  Y.  582,  63  N.  E. 
1119].    See  ''Assignments,"  Dec.  Dig.  (Key-No.)  §§  lS-19;   Cent.  Dig.  §§  25-31. 

60  Robson  V.  Drummond,  2  Barn.  &  Adol.  303 ;  British  Waggon  Co.  v.  Lea, 
5  Q.  B.  Div.  149;  Jaeger's  Sanjtary  Woolen  Supply  Co.  v.  Walker,  77  L.  T. 
(N.  S.)  180;  -Bethlehem  v.  Annis,  40  N.  H.  34,  77  Am.  Dec.  700;  Rappleye  v. 
Seeder  Co.,  79  Iowa,  220,  44  N.  W.  363,  7  L.  R.  A.  139;  Sloan  v.  Williams,  138 
111.  43,  27  N.  E.  531,  12  L.  R.  A.  496;  Joslyn  v.  Parlin,  54  Vt  670;  Chapin  v. 
Longworth,  31  Ohio  St.  421 ;  Devlin  v.  City  of  New  York,  63  N.  Y.  8 ;  Hardy 
Implement  Co.  v.  South  Bend  Iron  Works,  129  Mo.  222,  31  S.  W.  599;  Edison 
V.  Balka,  111  Mich.  235,  69  N.  W.  499 ;  Eastern  Advertising  Co.  v.  McGow,  89 
Md.  72,  42  Atl.  923;  Zetterlund  v.  Texas  Land  &  Coal  Co.,  55  Neb.  355,  75 
N.  W.  860;  Campbell  v.  Board  of  Com'rs,  64  Kan.  376,  67  Pac.  866;  Schlessing- 
er  v.  Forest  Products  Co.,  78  N.  J.  Law,  637,  76  Atl.  1024,  30  L.  R.  A.  (N.  S.) 
347, 138  Am.  St.  Rep.  627.  A  contract  by  a  publisher  with  an  author  to  publish 
a  work  has  been  held  not  assignable  by  the  publisher  without  the  author's  con- 
sent, because  of  the  personal  trust  placed  in  the  publisher  by  the  author. 
Stevens  v.  Benning,  1  Kay  &  J.  168;  Gibson  v.  Carruthers,  8  Mees.  &  W. 
321,  at  page  343.    And  see  Griffith  v.  Tower  Pub.  Co.  [1897]  1  Ch.  21.    A  con- 


§§    195-197)  ASSIGNMENT    OF    CONTRACTS  459 

things  pass  to  the  personal  representatives  of  the  party  liable  or 
entitled,  and,  as  we  shall  see,  are  thus  assigned  by  operation  of  law ; 
and  it  has  been  said  that  "the  power  to  assign  and  to  transmit  to 
personal  representatives  are  convertible  propositions."  ®^  A  per- 
son who  has  made  a  contract  to  render  personal  services  cannot  as- 
sign his  right  to  render  such  services,  but  he  can  assign  his  right  to 
receive  pay  for  them  when  rendered  by  him ;  *^  and  so,  it  seems,  a 
man  can  assign  the  money  to  become  due  under  any  contract.®' 

tract  for  the  sale  of  goods  on  credit  cannot  be  assigned  by  the  vendee  with- 
out the  vendor's  consent.  ARKANSAS  VALLEY  SMELTING  CO.  v.  BELDEN 
MIN.  CO.,  127  U.  S.  379,  8  Sup.  Ct.  1308,  32  L.  Ed.  246,  Throckmorton  Cas. 
Contracts,  320.  "When  rights  arising  out  of  contract  are  coupled  with  obli- 
gations to  be  performed  by  the  contractor,  and  involve  such  a  relation  of 
personal  confidence  that  it  must  have  been  intended  that  the  rights  should 
be  exercised,  and  the  obligations  performed,  by  him  alone,  the  contract,  in- 
cluding both  his  rights  and  his  obligations,  cannot  be  assigned  without  the 
consent  of  the  other  party  to  the  original  contract."  Board  of  Com'rs  of  Dela- 
ware County  V.  Diebold  Safe  &  Lock  Co.,  133  U.  S.  473,  10  Sup.  Ct.  399,  33  L. 
Ed.  674,  per  Gray,  J.  And  see  Burck  v.  Taylor,  152  U.  S.  634,  12  Sup.  Ct  696, 
38  L.  Ed.  578.  A  building  or  construction  contract  is  not  assignable  where  it 
is  made  in  reliance  on  the  personal  skill  or  experience  of  the  contractor.  John- 
son v.  Vickers,  139  Wis.  145,  120  N.  W.  837,  21  L.  R.  A.  (N.  S.)  359,  131  Am. 
St.  Rep.  1046 ;  but  if  not  so  made.  Is  assignable,  Taylor  v.  Palmer,  31  Cal.  240. 
If  the  contract  prohibits  assignment,  an  assignee  succeeds  to  no  rights.  Muel- 
ler v.  Northwestern  University,  195  111.  263,  63  N.  E.  110,  88  Am.  St.  Rep.  194 ; 
De  Vita  v.  Loprete,  77  N.  J.  Eq.  533,  77  Atl.  536,  Ann.  Cas.  1912A,  362,  and 
note.    See  "Assignments,"  Dec.  Dig.  (Key-'So.)  §§  IH,  19;   Cent.  Dig.  §§  25-Sl. 

«i  Zabriskie  v.  Smith,  13  N.  Y.  333,  64  Am.  Dec.  551;  Byxbie  v.  Wood,  24 
N.  Y.  607 ;  Devlin  v.  City  of  New  York,  63  N.  Y.  8 ;  Edmunds  v.  Illinois  Cent. 
Ry.  (C.  C.)  80  Fed.  78.  But  see  dictum  in  ARKANSAS  VALLEY  SMELTING 
CO.  V.  BELDEN  MIN.  CO.,  127  U.  S.  379,  8  Sup.  Ct.  1308,  32  L.  Ed.  246, 
Throckmorton  Cas.  Contracts,  320.  See  "Assignments,"  Dec.  Dig.  (Key-No.)  §§ 
IS,  19;  Cent.  Dig.  §§  25-31. 

62Rodijkeit  v.  Andrews,  74  Ohio  St.  104,  77  N.  E.  747,  5  L.  R.  A.  (N.  S.) 
504,  6  Ann.  Cas.  761 ;  Leitch  v.  Northern  Pac.  R.  Co.,  95  Minn.  35,  103  N.  W. 
704,  5  Ann.  Cas.  03 ;  Chicago,  B.  &  I.  R.  Co.  v.Trovolt,  42  Colo.  103,  93  Pac. 
1126,  16  L.  R.  A.  (N.  S.)  587.  By  statute  in  some  states^assignments  of  future 
wages  are  either  absolutely  void,  or  are  void  unless  accept\?d  by  the  employer 
and  recorded.  Mutual  Loan  Co.  v.  Martell,  200  Mass.  482,  86  N.  E.  916,  43  L. 
R.  A.  (N.  S.)  746,  128  Am.  St.  Rep.  446.  One  not  under  contract  or  existing 
employment  cannot,  at  law,  make  a  valid  assignment  of  wages  he  may  earn 
in  the  future.  It  is  the  mere  possibility  of  a  subsequent  acquisition  of  prop- 
erty, which  is  too  uncertain  to  be  the  basis  of  assignment.  Mulhall  v.  Quinn, 
1  Gray  (Mass.)  105,  61  Am.  Dec.  414 ;  Hamilton  v.  Rogers,  8  Md.  301 ;  Le- 
high Valley  R.  Co.  v.  Woodring,  116  Pa.  513,  9  Atl.  58;  O'Keefe  v.  Allert,  20  R. 
I.  414,  39  Atl.  752,  78  Am.  St.  Rep.  884.  For  assignment  of  salary  by  a  public 
officer,  see  ante,  p.  854.  See  "Assignments,"  Deo.  Dig.  (Key-No.)  §§  18,  19; 
Cent.  Dig.  §§  25-31. 

63  Devlin  v.  City  of  New  York,  63  N.  Y.  8;  Thayer  v.  Kelley,  28  Vt  19,  65 
Am.  Dec.  220;  Weed  v.  Jewett,  2  Mete.  (Mass.)  608,  37  Am.  Dec.  115;  Brackett 


460  OPERATION  OF  CONTRACT  (Ch.  9 

Same — Partial  Assignment 

A  debtor  has  a  right  to  pay  his  debt  as  a  whole,  an,d  cannot  with- 
out his  consent  be  subjected  to  separate  actions  by  different  per- 
sons. A  creditor,  therefore,  cannot,  at  law,  assign  a  part  of  his 
claim  without  the  debtor's  consent."*  It  is  generally  held,  however, 
that  the  rule  only  applies  where  the  assignment  is  sought  to  be  en- 
forced at  law  in  the  name  of  the  assignor,  and  that  in  equity  a  par- 
tial assignment  is  good,  for  the  reason  that  in  equity  the  assignor, 
as  well  as  the  debtor,  may  be  joined,  and  the  whole  controversy 
may  be  determined  in  one  suit."" 

V.  Blake,  7  Mete.  (Mass.)  335,  41  Am.  Dec.  442;  Emery  v.  Lawrence,  8  Cush. 
(Mass.)  151;  Garland  v.  Harrington,  51  N.  H.  409;  Shaffer  v.  Mining  Co.,  55 
Md.  74;  Ilawley  v.  Bristol,  39  Conn.  26;  Greene  v.  Bartholomew,  34  Ind.  235; 
Metcalf  V.  Klncaid,  87  Iowa,  443,  54  N.  W.  8(57,  43  Am.  St.  Rep.  391 ;  Bates 
V.  Lumber  Co.,  56  Minn.  14,  57  N.  W.  218 ;  Galey  v.  Mellon,  172  Pa.  443,  33 
Atl.  560;  Rodgers  v.  Torrent,  111  Mich.  680,  70  N.  W.  335.  A  thing  to  be  as- 
signable, at  law,  must  have  at  least  a  potential  existence.  Thallhimer  v. 
Brinckerhoff,  3  Cow.  (N.  Y.)  623,  15  Am.  Dec.  30S;  Moody  v.  Wright,  13  Mete. 
(Mass.)  17,  46  Am.  Dec.  706;  Hassle  v.  Congregation,  35  Cal.  378;  Skipper  v. 
Stokes,  42  Ala.  255,  94  Am.  Dec.  646 ;  Needles  v.  Needles,  7  Ohio  St.  432,  70 
Am.  Dec.  85.  A  man  could  not  assign  money  to  become  due  under  a  policy  not 
yet  issued,  but,  after  issuance,  he  may  do  so  before  any  loss.  Bergson  v.  In- 
surance Co.,  38  Cal.  541.  Future  rent  under  an  existing  lease.  Demarest  v. 
Willard,  8  Cow.  (N.  Y.)  206.  A  contract  between  an  insurance  company  and 
its  agent,  by  which  the  latter  is  entitled  to  receive  commissions  on  renewal 
premiums,  to  accrue  annually  for  a  given  period  in  the  future,  is  assignable  by 
the  agent,  as  the  contract  is  not  dependent  upon  any  contingency,  though  the 
profits  arising  under  it  are.  Khevals  v.  Blauvelt,  82  Me.  458,  19  Atl.  818.  But 
equity  will  uphold  an  assignment  of  a  thing  resting  in  mere  possibility,  as  of 
wages  to  be  earned  in  the  future  not  under  an  existing  contract  or  employ- 
ment, if  based  on  a  valuable  consideration,  the  assignment  taking  effect  when 
the  thing  comes  into  existence.  Field  v.  Mayor,  6  N.  Y.  179,  57  Am.  Dec.  435 ; 
Edwards  v.  Peterson,  80  Me.  367,  14  Atl.  936,  6  Am.  St.  Rep.  207 ;  Patterson  v. 
Caldwell,  124  Pa.  455,  17  Atl.  18,  10  Am.  St.  Rep.  598.  See  "Assignments," 
Dec.  Dig.  {Key-No.)  §§  18,  19;   Cent.  Dig.  §§  2.5-Sl. 

6  4Mandeville  v.  Welch,  5  Wheat.  277,  5  L.  Ed.  87;  Carter  v,  Nichols,  58 
Vt  553,  5  Atl.  197 ;  Getchell  v.  Maney,  69  ISIe.  442 ;  Beardsley  v.  Morgner  73 
Mo.  22;  Tripp  v.  Brownell,  12  Cush.  (Mass.)  at  page  382;  Gibson  v.  Cooke, 
20  Pick.  (Mass.)  15,  32  Am.  Dec.  194;  Milroy  v.  Iron  Co.,  43  Mich.  231,  5  N.  W. 
287;  Grain  v.  Aldrich.  38  Cal.  514,  99  Am.  Dec.  423;  Philadelphia's  Appeal, 
86  Pa.  179 ;  Dean  v.  St.  Paul  &  D.  R.,  53  Minn.  504,  55  N.  W,  628 ;  Kansas 
City,  M.  &  B.  R.  v.  Robertson,  109  Ala.  296,  19  South.  432 ;  Skobis  v.  Ferge, 
102  Wis.  122,  78  N.  W.  426 ;  Rivers  v.  A.  &  C.  Wright  &  Co.,  117  Ga.  81,  43  S. 
E.  499.  Where  a  contract  for  work  provides  for  payment  in  installments,  each 
installment  is  a  separate  demand,  and  may  be  assigned.  Adler  v.  Railroad  Co., 
92  Mo.  242,  4  S.  W.  917.  See  "Assignments,"  Dec.  Dig.  (Key-No.)  §§  SO,  58; 
Cent.  Dig.  §§  55-60,  121-123. 

6  5  National  Exch.  Bank  v.  McLoon,  73  Me.  498,  40  Am.  Rep.  388;  Canty  v. 
Latterner,  31  Minn.  239,  17  N.  W.  385;  First  Nat.  Bank  of  Wellsl)urg  v.  Kini- 
berlands,  16  W.  Va.  555 ;    Field  T.  City  of  New  York,  6  N.  Y.  179,  57  Am.  Dec 


§§    195-197)  ASSIGNMENT   OF    CONTRACTS  461 

Same — Form  of  Assignment 

No  particular  form  for  an  assig-nment  is  necessary,  unless  it  is 
required  by  statute.,  In  the  absence  of  a  statute  an  equitable  as- 
signment may  be  made  without  any  deed  or  writing,  by  any  words 
or  acts  showing  a  clear  intention  to  assign.««  An  order  made  by  a 
creditor  on  his  debtor  to  pay  the  debt  to  another  would  amount  to 
an  equitable  assignment  of  the  debt  to  the  person  in  whose  favor 
it  is  made  or  to  whom  it  is  given."  An  assignment  may  be  co:?- 
ditional,  or  as  security,  as  well  as  absolute.*' 

By  statute  in  some  of  the  states,  allowing  assignments  of  choses 
in  action  at  law,  and  suit  by  the  assignee  in  his  own  name,  it  is  re- 
quired that  the  assignment  shall  be  in  writing,  signed  by  the  as- 
signor or  his  agent.  If  it  is  not  in  such  a  form,  it  is  only  an  equita- 
ble assignment,  and  suit,  if  in  the  assignee's  name,  must  be  brought 

435;  Risley  v.  Bank,  S3  N.  T.  318,  at  page  329,  38  Am.  Rep.  421;  Daniels  v. 
Meinhard,  53  Ga.  350 ;  Fordyce  v.  Nelson,  91  Ind.  447 ;  Harris  Co.  v.  Camp- 
bell, 68  Tex.  22,  3  S.  W.  243,  2  Am.  St.  Rep.  467 ;  Etheridge  v.  Vernoy,  74  N. 
C.  800 ;  Bower  v.  Stone  Co.,  30  N.  J.  Eq.  171 ;  County  of  Des  Moines  v.  Hink- 
ley,  62  Iowa,  637,  17  N.  W.  915 ;  Schilling  v.  Mullen,  55  Minn.  122,  56  N.  W. 
586,  43  Am.  St  Rep.  475 ;  Warren  v.  Bank,  149  111.  9,  38  N.  E.  122,  25  L.  R. 
A.  746;  The  Elmbank  (D.  C.)  72  Fed.  610;  Chambers  v.  Lancaster,  160  N.  T. 
842,  54  N.  E.  707.  Contra,  Burnett  v.  Crandall,  63  Mo.  410;  Gardner  v.  Smith. 
6  Heisk.  (Tenn.)  256.  Some  cases  maintain  that  consent  of  the  debtor  is  nec- 
essary even  in  equity.  Story,  J.,  in  Mandeville  v.  Welch,  5  Wheat.  277,  5  L. 
Ed.  87.  See  James  v.  Newfon,  142  Mass.  366,  8  N.  E,  122,  56  Am.  Rep.  692 ; 
Kingsbury  v.  Burrill,  151  Mass.  199,  24  N.  E.  36.  See  "Assignments,"  Dec. 
Dig.  (Key-No.)  §§  30,  58;  Cent.  Dig.  §§  55-60,  121-123. 

68  Leake,  Cont.  603;  Row  v.  Dawson,  1  Ves.  Sr.  331;  Heath  v.  Hall,  4 
Taunt.  326;  Bower  v.  Stone  Co.,  30  N.  J.  Eq.  171;  Tingle  v.  Fisher,  20  W.  Va. 
497 ;  Shannon  v.  City  of  Hoboken,  37  N.  J.  Eq.  123 ;  Crane  v.  Gough,  4  Md. 
316;  Watson  v.  Bagley,  12  Pa.  164,  51  Am.  Dec.  595;  Bank  of  Commerce  v. 
Bogy,  44  Mo.  13,  100  Am.  Dec.  247;  Tone  v.  Shankland,  110  Iowa,  525,  81 
N.  W.  789.  It  is  said  that  an  assignment  will  not  be  supported  unless  con- 
sideration has  been  given  by  the  assignee.  Anson,  Cont.  (8th  Ed.)  238.  But 
the  debtor  cannot  defend  on  the  ground  that  the  assignment  was  without  con- 
sideration. Coe  V.  Hinkley,  109  Mich.  608,  67  N.  W.  915 ;  Anderson  v.  Rear- 
don,  46  Minn.  185,  48  N.  W.  777 ;  Greig  v.  Riordan,  99  Cal.  316,  33  Pac.  913 ; 
Forsyth  v.  Ryan,  17  Colo.  App.  511,  68  Pac.  1055 ;  Henderson  v.  Railway  Co., 
131  Mich.  438,  91  N.  W,  630.  But  see  Waterman  v.  Merrow,  94  Me.  237,  47  Atl. 
157.  Want  of  consideration  may  affect  rights  of  assignee  as  against  as- 
signor's creditors.  In  re  Doringh,  20  R.  I.  459,  40  AU.  4.  See  "Assignmentsr 
Dec.  Dig.  {Key-No.)  §  31;  Cent.  Dig.  §  61. 

67  story,  Eq.  Jur.  §  1044;  Mandeville  v.  Welch,  5  Wheat.  285,  5  L.  Ed.  87; 
Switzer  v.  Noffsinger,  82  Va.  518;  Wil.son  v.  Carson,  12  Md.  54.  See  "Assign- 
ments:' Dec.  Din.  (Key-No.)  §§  31,  50;    Cent.  Dig.  §§  61,  99. 

68  Draper  v.  Fletcher,  26  Mich.  154;  Herbstroit  v.  Beckwith,  35  Mich.  9o ; 
Gill  V  Weller  52  Md.  8 ;  Hunting  v.  Emmart,  55  Md.  265.  An  assignment  may 
be  Illegal  and  contrary  to  public  policy  (ante,  pp  354,  374).  See  "Assigrtr 
ments,"  Deo.  Dig.  (Key-No.)  §  82;   Cent.  Dig.  §  13/,. 


462  OPERATION  OF  CONTRACT  (Ch.  9 

in  equity,  or,  if  suit  is  brought  at  law,  it  must  be  in  the  name  of  the 
assignor.^* 

Same — Notice  of  Assignment 

The  assignment  is  complete  as  between  the  assignor  and  the  as- 
signee, or  those  standing  in  their  shoes  and  representing  them, 
without  any  notice  to  the  debtor  or  person  liable ;  ^°  but  it  will  not 
bind  the  debtor  until  he  has  received  notice  of  it.''^  A  person  liable 
under  a  contract  has  a  right  to  know  to  whom  his  liability  is  due, 
and  therefore,  if  he  receives  no  notice  that  it  is  due  to  another  than 
the  party  with  whom  he  originally  contracted,  and  pays  the  latter, 
he  is  entitled  to  credit  for  the  payment.^^  If,  for  instance,  a  mort- 
gage is  assigned  by  the  mortgagee  without  notice  to  the  mortgagor, 
and  the  mortgagor  afterwards  pays  to  the  mortgagee,  the  payment 
is  good  as  against  a  subsequent  claim  by  the  assignee.^*  The  rea- 
son of  the!  rule  has  been  thus  stated :  "The  debtor  is  liable  at  law 
to  the  assignor  of  the  debt,  and  at  law  must  pay  the  assignor  if  the 
assignor  sues  in  respect  of  it.  If  so,  it  follows  that  he  may  pay 
without  suit.  The  payment  of  the  debtor  to  the  assignor  discharges 
the  debt  at  law.  The  assignee  has  no  legal  right,  and  can  only  sue 
in  the  assignor's  name.  How  can  he  sue  if  the  debt  has  been  paid? 
If  a  court  of  equity  laid  down  the  rule  that  the  debtor  is  a  trustee 
for  the  assignee,  without  having  any  notice  of  the  assignment,  it 
would  be  impossible  for  a  debtor  safely  to  pay  a  debt  to  his  creditor. 
The  law  of  the  court  has  therefore  required  notice  to  be  given  to 

« 9  Tradesmen's  Nat.  Bank  of  Philadelphia  v.  Green,  57  Md.  602;  Mutual 
Life  Ins.  Co.  v.  Watson  (C.  C.)  30  Fed.  653  (Georgia  statute)  ;  Chamberlin  v. 
Gilman,  10  Colo.  94,  14  Pac.  107.  See  "Assignments,"  Dec.  Dig.  {Key-No.)  § 
41;  Cent.  Dig.  §§76,  77. 

TO  Muir  V.  Schenck,  3  Hill  (^.  T.)  228,  38  Am.  Dec.  633;  Wood  v.  Partridge, 
n  Mass.  488;  Thayer  v.  Daniels,  113  Mass.  129;  Burn  v.  Carvalho,  4  Mylue 
&  C.  690;  Bishop  v.  Ilolcorab,  10  Conn.  444;  Kafes  v.  McPherson  (N.  J.  Ch.) 
32  Atl.  710 ;  Marsh  v.  Garney,  69  N.  H.  236,  45  Atl.  745.  See  "Assignments," 
Dec.  Dig.  (Key-No.)  §  57;  Cent.  Dig.  §§  116-120. 

71  Stebhins  v.  Bruce,  80  Va.  389;  Fraley's  Appeal,  76  Pa.  42;  Bostwlck  v. 
Bryant.  113  Ind.  448,  16  N.  E.  378 ;  Richards  v.  Griggs,  16  Mo.  416,  57  Am. 
Dek  240;  Winberry  v.  Koonce,  83  N.  C.  351;  Porter  v.  Dunlap,  17  Ohio  St. 
591 ;  Shade  v.  Creviston,  93  Ind.  591.  In  case  of  bankruptcy  of  the  debtor 
before  notice,  it  would  pass  to  his  assignees  in  bankruptcy.  Ryall  v.  Rovvles, 
1  Ves.  Sr.  348 ;  Dean  v.  James,  1  Adol.  &  E.  809.  Otherwise  where  notice  has 
been  received  before  bankruptcy.  Crowfoot  v.  Gurney,  9  Bing.  372 ;  Hutchin- 
son V.  Heyworth,  9  Adol.  &  E.  375.  See  "Assignments"  Dec.  Dig.  {Key-No.)  § 
57;    Cent.  Dig.  §§  116-120. 

T2  Robinson  v.  Marshall,  11  Md.  251.  See  "Assignments,"  Dec.  Dig.  {Key- 
No.)  §  57;    Cent.  Dig.  §§  116-120. 

7  3  Williams  y.  Sorrell,  4  Ves.  389;  Van  Keuren  v.  Corkins,  66  N.  Y.  77.  See 
"Mortgages,"  Dec.  Dig.  {Key-No.)  §  238;   Cent.  Dig.  §§  67S-675. 


§§    195-197)  ASSIGNMENT    OF    CONTRACTS  463 

the  debtor  of  the  assignment  in  order  to  perfect  the  title  of  the  as- 
signee." ''* 

The  notice  need  not  be  given  in  any  formal  manner,  provided  it 
is  such  as  to  inform  the  debtor  of  the  assignment."  After  notice 
of  the  assignment,  he  cannot  refuse  to  be  bound  by  it;"  and  a 
payment  by  him  to  the  original  debtor  will  not  discharge  the  debt.^^ 

Same — Title  of  Assicpiee 

A  person  cannot  acquire  title  to  a  chose  in  action  from  one  who 
has  himself  no  title  to  it.  And  if  a  man  takes  an  assignment  of  a 
chose  in  action,  he  takes  his  chance  as  to  the  exact  position  in  which 
the  party  giving  it  stands.  In  other  words,  the  assignee  of  a  chose 
in  action  takes  it  subject  to  all  the  equities  of  the  debtor  against 
the  assignor  existing  at  the  time  he  received  notice  of  the  assign- 
ment."    If  the  debtor,  for  instance,  has  a  right  of  set-off  against 

7  4  stocks  V,  Dobson,  4  De  Gex,  :M.  &  G.  15.  See  "Assignments,"  Dec.  Dig. 
{Key-^'o.)  §  57;   Cent.  Dig.  §§  116-120. 

7  6  Smith  V.  Smith,  2  Cromp.  &  M.  231;  Anderson  v.  Van  Alen,  12  Johns. 
(N.  Y.)  343;  Meux  v.  Bell,  1  Hare,  73;  Edwards  v.  Scott,  1  Man.  &  G.  9G2; 
Ueermans  v.  Ellsworth,  64  N.  Y.  159;  Tibbits  v.  George,  5  Adol.  &  E.  107; 
Kiley  v.  Taber,  9  Gray  (Mass.)  372;  Barron  v.  Porter,  44  Vt.  587;  Dale  v. 
Kimpton,  46  Vt.  76;  Bean  v.  Simpson,  16  Me.  49;  Kellogg  v.  Krauser,  14 
Serg.  &  R.  (Pa.)  137,  16  Am.  Dec.  480;  GuUirie  v.  Bashline,  25  Pa.  80;  Skobia 
V.  Ferge,  102  Wis.  122,  78  N.  W.  426.  See  "Assignments,"  Dec.  Dig.  (Key-yo.) 
§  57;   Cent.  Dig.  §§  116-120. 

7  6  Tibbits  V.  George,  5  Adol.  &  E.  107 ;  Brill  v.  Tuttle,  81  N.  Y.  454,  37  Am. 
Rep.  515;  Switzer  v.  Noffsinger,  82  Va.  518;  Savage  v.  Gregg,  150  111.  161, 
37  N.  E.  312.  See  "Assignments,"  Dec.  Dig.  {Key-yo.)  §  57;  Cent.  Dig.  §§  116- 
120. 

77  Brill  V.  Tuttle,  81  N.  Y.  454,  37  Am.  Rep.  515;  Brice  v.  Bannister,  3  Q. 
B.  Div.  569 ;  Hall  v.  Insurance  Co.,  Ill  Mass.  53,  15  Am.  Rep.  1 ;  Whitman 
V.  Arms  Co.,  55  Conn.  247,  10  Atl.  571;  Shriner  v.  Lamborn,  12  Md.  170; 
Kitzinger  v.  Beck,  4  Colo.  App.  206,  35  Pac.  278;  Schilling  v.  Mullen,  55  Minn. 
122,  56  N.  W.  586,  43  Am.  St.  Rep.  475 ;  Ferguson  v.  Davidson,  147  Mo.  664, 
49  S.  W.  859.     See  "Assignments,"  Dec.  Dig.  (Key-No.)  §  93;   Cent.  Dig.  §  159. 

7  8  Crouch  V.  Credit  Foncier,  L.  R.  8  Q.  B.  380;  Mangles  v.  Dixon,  3  H.  L. 
Cas.  702,  735;  Clute  v.  Robison,  2  Johns.  (N.  Y.)  595;  Littlefield  v.  Bank,  97 
N.  Y.  581;  Callanan  v.  Edwards,  32  N.  Y.  483;  Kleeman  v.  Frisbie,  63  111. 
482;  Buckner  v.  Smith,  1  Wash.  (Va.)  296,  1  Am.  Dec.  463;  Kamena  v.  Huel- 
big,  23  N.  J.  Eq.  78 ;  Spinning  v.  Sullivan,  48  Mich.  5,  11  N.  W.  758 ;  Edson 
V.  Gates,  44  Mich.  253,  6  N.  W.  645;  Barney  v.  Grover,  28  Vt.  391;  Martin 
V.  Richardson,  68  N.  C.  255 ;  Lane  v.  Smith,  103  Pa.  415 ;  Willis  v.  Twambly, 
13  Mass.  204 ;  Shade  v.  Creviston,  93  Ind.  591 ;  Goldsborough  v.  Cradie,  28 
Md.  477;  Boardman  v.  Hayne,  29  Iowa,  339;  Russell  v.  Kirkbride,  62  Tex. 
455;  Hill  v.  McPher-son,  15  Mo.  204,  55  Am.  Dec.  142;  Third  Nat.  Bank  of 
Atlanta  v.  Railroad  Co.,  114  Ga.  890,  40  S.  E.  1016.  If  the  debtor  does  any- 
thing to  mislead  the  as.signee,  he  may  be  estopped ;  and  in  this  way  the  as- 
signee may  get  a  better  title  than  his  assignor.  Ilolbrook  v,  Burt,  22  Pick. 
(.Mass.)  546;  Kemp's  Ex'x  v.  McPherson,  7  Har.  &  J.  (Md.)  320;  Johnston 
v.  Insurance  Co.,  39  Md.  233;    Woodson  v.  Barrett,  2  Hen.  &  M.   (Va.)  80,  3 


464  OPERATION  OF  CONTRACT  (Ch.  9 

the  debt  at  the  time  of  the  assignment,  he  may  enforce  the  right  as 
against  the  assignee;  ^*  and,  as  we  have  already  seen,  he  may  en- 
force a  right  of  set-ofif  acquired  after  the  assignment,  but  before 'he 
received  notice  of  it.*"  Since,  however,  notice  thereof  completes 
the  assignment  as  against  the  debtor,  he  cannot  set  off  a  claim  aft- 
erwards acquired.®^  So,  also,  if  a  party  is  induced  to  enter  into  a 
contract  by  fraud,  and  the  fraudulent  party  assigns  his  interest  in 
the  contract,  the  party  defrauded  may  have  the  contract  set  aside 
in  equity  in  spite  of  the  assignment,  and  this  though  the  assignee 
may  have  paid  full  value,  and  may  have  been  wholly  innocent.*^  . 

It  seems  that  the  parties  to  a  contract  may  stipulate  that,  if  ei- 
ther assign  his  rights  under  it,  the  assignment  shall  be  "free  from 
equities ;"  that  is  to  say,  that  the  assignee  shall  not  be  liable  to  be 
met  by  such  defenses  as  would  have  been  valid  against  his  as- 
signor.*' 

Am.  Dec.  612;  Scott  v.  Sadler,  52  Pa.  211;  Buckner  v.  Smith,  1  Wash.  (Va.) 
296,  1  Am.  Dec.  4a3 ;  Boardman  v.  Hayne,  29  Iowa,  339.  Equities  which  may 
be  interposed  as  defenses  against  the  assignee  of  a  nonnegotiable  instrument 
are  only  such  as  are  inherent  in  the  contract  evidenced  by  the  instrument,  and 
which  exist  at  the  time  of  the  assignment  Merchants'  Bank  of  Buffalo  v. 
Weill,  163  N.  Y.  486,  57  N.  E.  749,  79  Am.  St  Rep.  605.  See  ''Assignments," 
Dec.  Dig.  (Key-No.)  §  90;   Cent.  Dig.  §  156. 

7  9  Story,  Eq.  Jur.  §  1047;  Cavendish  v.  Greaves,  24  Beav.  163;  Massachu- 
setts Loan  &  Trust  Co.  v.  Welch,  47  Minn.  183,  49  N.  W/  740 ;  Greene  v.  Hatch, 
12  Mass.  195 ;  Zabriskie  v.  Railroad  Co.,  131  N.  Y.  72,  29  N.  E.  1006 ;  Wood 
V.  City  of  New  York,  73  N.  Y.  556;  McKenna  v.  Kirkwood,  50  Mich.  544,  15 
N.  W.  898 ;  First  Nat.  Bank  of  New  Windsor  v.  Bynum,  84  N.  C.  24,  37  Am. 
Rep.  604 ;  Hooper  v.  Brundage,  22  Me.  460 ;  Hunt  v.  Shackleford,  55  Miss.  94 ; 
Sanborn  v.  Little,  3  N.  H.  539 ;  Littlefield  v.  Bank,  97  N.  Y.  581 ;  Jack  v. 
Davis,  29  Ga.  219.  An  unmatured  debt,  existing  at  the  time  of  the  assign- 
ment, cannot  be  set  off.  Roberts  v.  Carter,  38  N.  Y.  107 ;  Chambliss  v.  Mat- 
thews, 57  Miss.  306 ;  Backus  v.  Spaulding,  129  Mass.  234 ;   Adams  v.  Rodarmel, 

19  Ind.  339;  Graham  v.  Tilford,  1  Mete.  (Ky.)  112;  Follett  v.  Buyer,  4  Ohio 
St  586.  See  "Assignments,''  Dec.  Dig.  (Key-No.)  §  100;  Cent.  Dig.  §§  177, 
180. 

soMcCabe  v.  Gray,  20  Cal.  509;  Abshire  v.  Corey,  113  Ind.  484,  15  N.  E. 
685 ;    Faulknor  v.  Swart,  55  Hun,  261,  8  N.  Y.  Supp.  239 ;    Adams  v.  Leavens, 

20  Conn.  73.    See  "Assignments,"  Dec.  Dig.  (Key-No.)  §  101;   Cent.  Dig.  §  182. 
81  Goodwin  v.  Cunningham,   12  Mass.  193;    St   Andrew  v.  Manufacturing 

Co.,  134  Mass.  42;  Weeks  v.  Hunt  6  Vt  15;  Crayton  v.  Clark,  11  Ala.  787. 
See  "Assignments,"  Dec.  Dig.  (Key-No.)  §  101;   Cent.  Dig.  §  187. 

8  2  Graham  v.  Johnson,  L.  R.  8  Eq.  38;  Holbrook  v.  Burt  22  Pick.  (Mass.) 
546.  But  see  Bloomer  v.  Henderson,  8  Mich.  395,  77  Am.  Dec.  453.  See  "As- 
signments," Dec.  Dig.  (Key-No.)  §  100;   Cent.  Dig.  §§  111,  180. 

83  Ex  parte  Asiatic  Banking  Corp.,  2  Ch.  App.  397.  "It  is  questionable,  how- 
ever, whether  such  a  stipulation  would  protect  the  assignee  against  the  effects 
of  fraud,  or  any  vital  defect  in  the  formation  of  the  original  contract"  An- 
son, Cont  (8th  Ed.)  238.  See  "Assignments,"  Dec.  Dig.  (Key-No.)  S  100;  Cent. 
Dig.  §§  i77,  180. 


g§    195-197)  ASSIGNMENT    OF    CONTRACTS  465 

Same — Priority  between  Assignees 

It  is  held  in  England  that  "equitable  titles  have  priority  accord- 
ing to  the  priority  of  notice;  "  '*  that  the  successive  assignees  of  an 
obligation  rank  as  to  their  title  according  to  the  dates  at  which 
they  gave  notice  to  the  party  to  be  charged.  This  doctrine  is  also 
recognized  by  the  courts  of  some  of  our  states,  and  by  the  supreme 
court  of  the  United  States."  The  courts  of  many  of  the  states,  on 
the  other  hand,  hold  that  equitable  titles  have  priority,  not  accord- 
ing to  the  priority  of  notice,  but  according  to  priority  in  time  of  as- 
signment, on  the  ground  that  as  between  assignor  and  assignee  the 
assignment  is  complete  without  any  notice  to  the  debtor,  and  that  a 
purchaser  of  a  chose  in  action  must  always  abide  by  the  case  of  the 
person  from  whom  he  buys.'* 

Under  Statutes 

In  most  of  the  states,  statutes  have  been  enacted  changing 
the  common-law  rules  in  relation  to  assignments  of  choses  in  ac- 
tion. These  statutes  vary  somewhat,  so  that  it  would  be  im- 
practicable to  attempt  to  set  them  out.  In  most  states  it  is  sub- 
stantially provided  that  the  assignee  of  a  chose  may  sue  the  debtor 
in  his  own  name  in  the  same  manner  as  the  assignor  might  have 
done  before  the  assignment.  In  some  states  the  same  result  is 
accomplished  by  statutes  requiring  actions  to  be  brought  in  the 
name  of  the  "real  party  in  interest."  It  may  be  said  generally 
that  the  effect  of  the  statutes  is  to  put  an  assignment  of  a  chose 
in  action  on  the  same  footing  at  law  as  in  equity.  What  we 
have  said,  therefore,  in  treating  of  assignments  in  equity,  gen- 
erally applies  to  assignments  at  law  under  the  statutes.*^ 

«<  Stocks  V.  Dobson,  4  De  Gex.  M.  &  G.  15.  See  "Assignments,"  Dec.  Dig. 
{Key-No.)  §  85;   Cent.  Dig.  §§  1J,9-151. 

8  5  Ward  V.  Morrison,  25  Vt.  593;  Murdoch  v.  Finney,  21  Mo.  138;  Clod- 
felter  v.  Cox,  1  Sneed  (Tenn.)  330.  60  Am.  Dec.  157;  White's  Heirs  v.  Pren- 
tiss' Heirs,  3  T.  B.  Mon.  (Ky.)  449;  Judson  v.  Corcoran,  17  How.  (512,  15  L. 
Ed.  231 ;  Spain  v.  Brent,  1  Wall.  624.  17  K  Ed.  619 ;  Laclede  Bank  v.  Schuler, 
120  U.  S.  511,  7  Sup.  Ct.  644,  30  L.  Ed.  704;  In  re  Gillespie  (D.  C.)  15  Fed. 
734;  Methven  v.  Power  Co.,  00  Fed.  113,  13  C.  C.  A.  362;  Graham  Paper  Co. 
V.  Pembroke,  124  Cal.  117,  56  Pac.  627,  44  L.  R.  A.  032,  71  Am.  St.  Rep.  26; 
Township  of  Washington  v.  First  Nat.  Bank,  147  Mich.  571,  111  N.  W.  349, 
11  L.  R.  A.  (N.  S.)  471.  See  ''Assignments,"  Dec.  Dig.  {Key-No.)  §  85;  Cent. 
Diq.  §§  11,0-151. 

80  Muir  V.  Schenck,  3  Hill  (N.  Y.)  228,  38  Am.  Dec.  633;  Thayer  v.  Daniels, 
113  Mass.  129;  Kamena  v.  Iluelbig,  23  N.  J.  Eq.  78;  Tingle  v.  Fisher,  20  W. 
Va.  497;  Newby  v.  Hill,  2  Mote.  (Ky.)  530;  Ohio  Life  Ins.  &  Trust  Co.  v. 
Ross.  2  Md.  Ch.  25 ;  MacDonald  v.  Kneeland,  5  Minn.  352  (Gil.  283)  ;  For- 
tunate V.  Patten,  147  N.  Y.  277,  41  N.  E.  572.  See  "Assignments,"  Dec.  Dig. 
{Key-No.)  §  85;   Cent.  Dig.  §§  1J,0-151. 

bi  ALLLN   V.   BROWX,   44   N.   Y.  228,  Throckmorton  Caa.  Contracts,   327; 

Clabk  Cont.(3d  Ed.)— 30 


466  OPERATION  OF  CONTRACT  (Ch.  9 

Negotiable  Instruments 

It  remains  to  mention  a  class  of  promises  the  benefit  of  which 
is  transferable,  under  the  law  merchant,  in  such  a  way  that  the 
promise  may  be  enforced  by  the  transferee  in  his  own  name,  with- 
out notice  to  the  promisor,  and  under  certain  circumstances  with- 
out risk  of  being  met  by  maliy  of  the  defenses  which  would  have 
prevailed  as  against  his  transferror.  These  contracts  are  called 
"negotiable"  instruments,  for  the  reason  that  they  may  be  trans- 
ferred by  "negotiation"  as  distinguished  from  "assignment."  They 
include  bills  of  exchange,  promissory  notes,  checks,  some  classes 
of  corporate  bonds  for  the  payment  of  money,  and  some  other 
instruments.  Most  of  these  instruments  are  negotiable  by  the 
custom  of  merchants  recognized  by  the  courts.  Some  instruments 
are  negotiable  by  statute.  Promissory  notes  were  put  upon  the 
same  footing  as  bills  of  exchange  by  the  statute  of  3  &  4  Anne,  c. 
9,  §§  1-3,  although  this  statute  is  generally  regarded  as  only  de- 
claratory of  the  law. 

Negotiation  means  transfer  in  the  form  and  manner  prescribed 
by  the  law  merchant.  If  the  instrument  is  payable  to  order,  it 
is  transferable  by  indorsement;  if  payable  to  bearer,  by  mere  de- 
livery.®* The  usual  form  of  indorsement  is  the  signature  of  the 
indorser,  with  or  without  a  direction  to  pay  to  a  specified  in- 
dorsee or  to  his  order.  If  the  indorsee  is  specified,  the  indorsement 
is  necessary  to  the  further  negotiation  of  the  instrument;  but 
if  the  indorsement  specifies  no  indorsee,  the  instrument  becomes 
in  effect  payable  to  bearer,  and  may  be  further  negotiated  by 
delivery.*" 

The  effect  of  negotiation  is  (1)  to  transfer  the  legal  title  to  the 
transferee,  so  that  he  may  sue  upon  the  instrument  in  his  own 
name;  ^^  and  (2)  if  the  transferee  is  a  purchaser  for  value,  before 
maturity  of  the  instrument,  and  without  notice  of  facts  which  would 
impeach  its  validity  between  antecedent  parties,  he  may  enforce 
payment,  notwithstanding  defenses  (other  than  those  which  attach 
to  the  instrument  itself  and  are  good  against  all  persons)  which 
would  have  been  good  against  his  transferror  or  other  prior 
parties.®^  Notice  of  the  transfer  need  not  be  given  to  the  party 
liable.     Consideration  is  presumed  to  be  given  until  the  contrary 

Dakin  v.  Pomeroy,  9  Gill  (Md.)  1;  Doering  v.  Kenamore,  86  Mo.  588;  Strong 
v.  Clem,  12  lud.  37,  74  Am.  Dec.  200 ;  Jordan  v.  Thornton,  7  Ark.  224,  44  Am. 
Dec.  546.    See  ''Assignments,"  Dec.  Dig.  (Key-No.)  §§  IS;  Cent.  Dig.  §§  1-5. 

88  Norton,  Bills  &  N.  (3d  Ed.)  200-206. 

89  Norton,  Bills  &  N.  (3d  Ed.)  105-118. 
»o  Norton,  Bills  &  N.  (3d  Ed.)  207-215. 
«»i  Norton,  Bills  &  N.  (3d  Ed.)  216  et  seq. 


§    199)  ASSIGNMExNT    OF    CONTRACTS  467 

appears,  although  the  burden  of  proof  may  be  changed  if  it 
appears  that  there  was  fraud  or  illegality  in  the  issue  or  subse- 
quent negotiation  of  the  instrument."^ 

Negotiable  instruments  may  be  transferred  by  assignment  as 
well  as  by  negotiation,  but  in  such  case  only  the  equitable  as 
distinguished  from  the  legal  title  is  transferred,  and  the  incidents 
of  the  transfer  are  substantially  the  same  as  in  the  case  of  the 
transfer  of  a  mere  chose  in  action,  the  assignee  standing  in  no 
better  position  than  his  assignor.^^  It  would  be  beyond  the 
scope  of  this  book  to  go  further  into  the  law  of  negotiable  instru- 
ments. 


SAME— ASSIGNMENT  BY  OPERATION  OF  LAW 

198.  Rules  of  law  operate  to  transfer  rights  and  liabilities  arising 
out  of  a  contract,  under  certain  circumstances  and  to  a 
certain  extent,  in  the  following  cases : 

(a)  Upon  the  transfer  of  an  interest  in  land. 

(b)  Upon  a  woman's  marriage. 

(c)  By  death. 

(d)  By  bankruptcy. 

We  have  thus  far  dealt  with  the  manner  in  which  the  parties 
to  a  contract  may  by  their  own  acts  assign  to  others  the  benefits 
or  liabilities  of  the  contract.  It  remains  now  to  show  how  these 
rights  and  liabilities  may  pass  by  operation  of  law. 


SAME— ASSIGNMENT  OF  OBLIGATIONS  ON  TRANSFER 
OF  INTERESTS  IN  LAND 

199.  If  a  person,  by  purchase  or  lease,  acquires  an  interest  in  land 
from  another,  on  terms  which  bind  them  by  contractual 
obligations  in  respect  of  their  several  interests,  the  as- 
signment by  either  party  of  his  interest  will  operate  as 
a  transfer  of  these  obligations  to  the  assignee  as  follows: 

•  2  Norton,  Bills  &  N.  (3d  Ed.)  327. 

9  3  Edge  V.  Bumford,  31  L.  J.  Cli.  805;  Central  Trust  Co.  v.  Bank,  101  U.  S. 
68,  25  L.  Ed.  876;  Osgood's  Adm'rs  v.  Artt  (C.  C.)  17  Fed.  575;  Lancaster 
Nat.  Bank  v.  Taylor,  100  Mass.  18,  1  Am.  Rep.  71,  97  Am.  Dec.  70;  Goshen 
Nat.  Bank  v.  Bingham,  118  N.  Y.  349,  23  N.  E.  180,  7  L.  R.  A.  595,  16  Am.  St 
Rep.  705;  Norton,  Bills  &  N.  (3d  Ed.)  196,  200.  See  "Bills  and  Notes,"  Dec. 
Dig.  (Key-No.)  §§  S10-S13;  Cent.  Dig.  §§  742-750. 


iC8  OPERATION    OF   CONTRACT  (Ch.  9 

(a)  Covenants  affecting  leasehold  interests, 

(1)  If  they  touch  and  concern  the  thing  demised,  and  re- 

late to  something  which  was  in  existence  at  the  time 
of  the  lease,  pass  to  the  assignee,  though  not  express- 
ed to  have  been  made  with  the  lessee  "and  his  as- 
signs." 

(2)  If  they  relate  to  something  not  in  existence  at  t3ie  time 

of  the  lease,  they  pass  to  the  assignee,  if  expressed  as 
made  with  the  lessee  "and  assigns," 

(3)  In  no  case  do  merely  personal  or  collateral  covenants 

between  the  landlord  and  lessee  pass  to  the  latter's 
assignee. 

(4)  The  reversioner  or  landlord  does  not  at  common  law,  by 

assigning  his  interest  in  the  land,  convey  his  rights  and 
liabilities  to  the  assignee,  but  this  is  very  generally 
changed  by  statute. 

(b)  Covenants  affecting  freehold  interests, 

(1)  If  made  to  the  owner  of  the  land,  and  for  his  benefit,  pass 

to  his  assignees,  provided  they  touch  and  concern  the 
land,  and  are  not  merely  personal. 

(2)  If  made  by  the  owner,  restricting  his  enjo5mient  of  the 

land,  they  do  not,  at  common  law,  bind  his  assignees, 
except  in  case  of  well-known  interests,  such  as  ease- 
ments, recognized  by  law.  In  equity,  however,  it  is 
otherwise  in  case  of  certain  covenants  of  which  the 
assignee  had  notice  at  the  time  of  his  purchase.®* 

Covenants  Affecting  Leasehold  Interests 

At  common  law,  covenants  affecting  leasehold  interests  are  said 
to  "run  with  the  land,  and  not  with  the  reversion" ;  that  is  to 
say,  they  pass  upon  an  assignment  of  the  lease,  but  not  upon  an 
assignment  or  transfer  of  the  reversion.  If  a  lessee  assigns  his 
lease,  the  assignee,  in  certain  cases,  will  be  bound  to  the  landlord 
by  the  same  liabilities,  and  entitled  to  the  same  rights,  as  his 
assignor.    The  extent  to  which  this  is  so  may  be  stated  thus : 

(1)  Covenants  in  a  lease  which  "touch  and  concern  the  thing 
demised"  ®^  pass  to  the  lessee's  assignee,  and  it  is  not  necessary 

9  4  Following  substantially  Anson,  Cont.  (4tli  Ed.)  232. 

8  5  As  to  the  meaning  of  this  term,  see  Masury  v.  South  worth,  9  Ohio  St 
S41;  Wiggins  Ferry  Co.  v.  Eailroad  Co.,  94  111.  S3;  Norman  v.  Wells,  17 
Wend.  (N.  Y.)  136;  Peden  v.  Railway  Co.,  73  Iowa,  32S,  35  N.  W.  424,  5  Am. 
St  Rep.  eSO ;  Kettle  R.  R.  Co.  v.  Railway  Co.,  41  Minn.  461,  43  N.  W.  4fi9,  6 
L.  R.  A.  Ill ;  Norfleet  v.  Cromwell,  70  N.  C.  634,  16  Am.  Rep.  787 ;  Pittsburgh, 
Ft.  W.  &  C.  R.  Co.  y.  Reno,  123  lU.  273,  14  N.  E.  195 ;   Lyford  v.  Railroad  Co- 


§    199)  ASSIGNMENT    OF    CONTRACTS  4G9 

in  such  case  that  the  covenants  be  expressed  to  have  been  made 
with  the  lessee  "and  his  assigns."  Of  this  class  are  covenants 
to  repair,  or  to  leave  in  good  repair,  or  to  deal  with  the  land  in 
any  specified  manner.  Such  covenants  touch  and  concern  the 
land,  which  is  the  thing  demised.®® 

(2)  Covenants  in  a  lease  which  touch  and  concern  the  thing 
demised,  but  relate  to  something  not  in  existence  at  the  time  of 
the  lease,  pass  to  the  lessee's  assignee  only  where  the  covenant 
is  expressly  made  with  the  lessee  "and  assigns."  ®^ 

(3)  In  no  case  does  the  assignee  of  a  lease  acquire  benefit  or 
incur  liability  from  merely  personal  or  collateral  covenants  made 
between  the  lessee  and  landlord.  For  instance,  where  a  lessee 
of  land  covenanted  to  use  the  premises  as  a  schoolhouse,  and  the 
lessor  covenanted  not  to  build  or  keep  any  house  for  the  sale  of 
intoxicating  liquor  within  a  certain  distance  of  the  premises,  it 
was  held  that  the  benefit  of  the  lessor's  covenant  did  not  pass 
to  the  assignee  of  the  lease.®* 

92  Cal.  93,  28  Pac.  103.  See  "Landlord  and  Tenant,"  Dec.  Dig.  (Kev-No.)  §  U; 
Cent.  Dig.  §§  108-110. 

9  6  Spencer's  Case,  1  Smith,  Lead.  Cas.  1G8,  and  cases  collected  in  note;  GOK- 
DON  V.  GEORGE,  12  Ind.  408,  Throckmorton  Cas.  Contracts,  328;  Norman  v. 
Wells,  17  Wend.  (N.  Y.)  136;  Suydam  v.  .Jones,  10  Wend.  (N.  Y.)  180,  25  Am. 
Dec.  552;  Leppla  v.  Mackey,  31  Minn.  75,  16  N.  W.  470;  Donelson  v.  Polk, 
64  Md.  501,  2  Atl.  824;  Demarest  v.  Willard,  8  Cow.  (N.  Y.)  20G;  Callan  v. 
McDaniel,  72  Ala.  96;  Post  v.  Kearney,  2  N.  Y.  394,  51  Am.  Dec.  303;  Fitch 
V.  Johnson,  104  111.  Ill ;  Coburn  v.  Goodall,  72  Cal.  498,  14  Pac.  190,  1  Am.  St. 
Rep.  75.  See  "Landlord  and  Tenant''  Dec.  Dig.  (Key-No.)  §  152;  Cent.  Dig. 
i  552. 

07  Minshull  v.  Oakes,  2  Hurl.  &  N.  808;  Spencer's  Case,  1  Smith,  Lead.  Cas. 
168;  Hansen  v.  Meyer,  81  111.  321,  25  Am.  Rep.  282;  Newburg  Petroleum  Co. 
V.  Weare.  44  Ohio  St.  604,  9  N.  E.  845 ;  Bailey  v.  Richardson,  66  Cal.  416,  5 
Pac.  910 ;  Coffin  v.  Talman,  8  N.  Y.  465 ;  Tallman  v.  Coffin,  4  N.  Y.  134 ;  Mas- 
ury  V.  Southworth,  9  Ohio  St.  340 ;  Dorsey  v.  Railroad  Co.,  58  111.  65 ;  Cronin 
V.  Watkins,  1  Tenn.  Ch.  119;  Bream  v.  Dickerson,  2  Humph.  (Teun.)  126; 
Hartung  v.  Witte,  59  Wis.  285,  18  N.  W.  175.  See  "Landlord  and  Tenant," 
Dec.  Dig.  (Keu-No.)  §  U;   Cent.  Dig.  §§  108-110. 

8  8  Thomas  v.  Haywood,  L.  R.  4  Exch.  311.  The  lessee  cannot,  by  assigning 
the  lea.se,  release  himself  from  his  express  covenants — as  to  pay  rent.  He 
cannot  escape  this  liability  without  the  landlord's  consent,  and  the  latter's 
mere  assent  to  the  assignment  does  not  amount  to  a  release.  Pfaff  v.  Golden. 
126  Mass.  402;  Oswald  v.  Fratenburgh,  36  Minn.  270,  31  N.  W.  173;  Green- 
leaf  V.  Allen.  127  Mass.  248;  Nova  Cesarea  Harmony  Lodge  No.  2  v.  White, 
30  Ohio  St.  569,  27  Am.  Rep.  492 ;  Harris  v.  Heackman,  62  Iowa,  411,  17  N.  W. 
692;  Wilson  v.  Gerhardt,  9  Colo.  .585,  13  Pac.  705;  Ghegan  v.  Young,  23  Pa. 
18.  If  the  landlord  accepts  the  sublessee  as  tenant,  and  releases  the  lessee,  it 
is  otherwise.  See  Colton  v.  Gorham,  72  Iowa,  324,  33  N.  W.  76.  See  "Land- 
lord and  Tenant,"  Dec.  Dig.  (Key-No.)  §§  J,4,  152,  208;  Gent.  Dig.  §§  108-110. 
£52,  821. 


470  OPERATION  OF  CONTRACT  (Ch.  9 

At  common  law,  the  assignment  of  his  interest  by  the  reversion- 
er or  landlord  does  not  convey  his  rights  and  liabilities  to  his 
assignee.  The  law  in  this  respect,  however,  was  changed  in 
England  by  a  statute  in  the  reign  of  Henry  VIII,®®  under  which 
the  assignee  of  the  reversion  is  enabled  to  take  the  benefits  and 
also  incurs  the  liabilities  of  covenants  entered  into  with  his  as- 
signor. This  statute  is  recognized  as  a  part  of  the  common  law 
in  some  of  our  states,  while  in  others  similar  statutes  have  been 
enacted/  The  rules  as  to  the  connection  of  the  covenants  with 
the  thing  demised  apply  to  such  as  run  with  the  reversion  equally 
with  those  that  run  with  the  land ;  that  is  to  say,  they  must 
"touch  and  concern  the  thing  demised,"  and  not  be  merely  person- 
al or  collateral.^ 

Covenants  Affecting  Freehold  Interests 

At  common  law,  covenants  entered  into  with  the  owner  of  land 
— that  is  to  say,  promises  under  seal  made  to  the  owner  of  land,  and 
for  his  benefit — pass  to  his  assignees,  provided,  as  in  other  cases, 
they  touch  and  concern  the  land  conveyed,  and  are  not  merely  per- 
sonal.* For  instance,  if  the  vendor  of  land  covenants  with  the  pur- 
chaser that  he  has  a  good  right  to  convey  the  land,  the  benefit  of  the 
covenant  will  pass  to  an  assignee  of  the  purchaser;*  but  it  would 

»9  32  Hen.  VIII,  c.  34. 

1  Baldwin  v.  Walker,  21  Conn.  168;  Howland  v.  Coffin,  12  Pick.  (Mass.> 
125;  Perrin  v.  Lepper,  34  Micti.  295.  Where  statute  requires  actions  to  be 
brought  in  name  of  real  party  in  interest,  it  is  held  that  action  on  covenants 
of  lease  may  be  brought  by  assignee  of  reversioner.  See  Masury  v.  South- 
worth,  9  Ohio  St.  340 ;  Smith  v.  Harrison,  42  Ohio  St.  180.  See  "Landlord  and 
Tenant,"  Dec.  Dig.  (Key-lso.)  §  53;  Cent.  Dig.  §§  129-135. 

2  Spencer's  Case,  1  Smith,  Lead.  Cas.  168.  See  "Landlord  and  Tenant,"  Dec. 
Dig.  (Key-No.)  §  53;  Cent.  Dig.  §§  129-135. 

3  Horn  V.  Miller,  136  Pa.  640,  20  Atl.  706,  9  L.  R.  A.  810 ;  Kellogg  v.  Robin- 
son, 6  Vt.  276,  27  Am.  Dec.  550;  Peden  v.  Railway  Co.,  73  Iowa,  328,  35  N. 
W.  424,  5  Am.  St.  Rep.  680 ;  Coudert  v.  Sayre,  46  N.  J,  Eq.  386,  19  Atl.  190 ; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  O'Baugh,  49  Ark.  418,  5  S.  W.  711 ;  Raby  v. 
Reeves,  112  N.  C.  688,  16  S.  E.  700 ;  Hallenbeck  v.  Kindred,  109  N.  Y.  620,  15 
N.  E.  887 ;  Scott  v.  Stetler,  128  Ind.  385,  27  N.  E.  721 ;  De  Gray  v.  Clubhouse 
Co.,  50  N.  J.  Eq.  329,  24  Atl.  388 ;  Lucas  v.  Turnpike  Co.,  30  W.  Va.  427,  15 
S.  E.  182 ;  Inhabitants  of  Middlefield  v.  Knitting  Co.,  160  Mass.  207,  35  N.  E. 
780.  Covenant  against  paramount  ground  rent.  Providence  Life  &  Trust  Co. 
V.  Fiss,  147  Pa.  232,  23  Atl.  500.  See  "Covenants,"  Dec.  Dig.  (Key-No.)  §  53; 
Cent.  Dig.  §§  22,  52. 

4  Suydam  v.  Jones,  10  Wend.  (N.  Y.)  180,  25  Am.  Dec.  552;  Beddoe's  Ex'r 
V.  Wadsworth,  21  Wend.  (N.  Y.)  120;  Tillotson  v.  Prichard,  60  Vt.  94,  14  Atl. 
302,  6  Am.  St.  Rep.  95 ;  Flaniken  v.  Neal,  67  Tex.  629,  4  S.  W.  212 ;  Wead  v. 
Larkin,  54  111.  489,  5  Am.  Rep.  149 ;  Thomas  v.  Bland,  91  Ky.  1,  14  S.  W.  955, 
11  L.  R.  A.  240 ;  Succession  of  Cassidy,  40  La.  Ann.  827,  5  South.  292 ;  Allen 
V.  Kennedy,  91  Mo.  324,  2  S.  W.  142 ;    Butler  v.  Barnes,  60  Conn.  170,  21  Atl. 


§    199)  ASSIGNMENT    OF    CONTRACTS  471 

be  otherwise  in  case  of  a  covenant  relating-  to  a  matter  purely  per- 
sonal between  the  covenantor  and*covenantee.° 

On  the  other  hand,  covenants  entered  into  by  the  owner  of  land 
which  restrict  his  enjoyment  of  the  land  do  not,  at  common  law, 
bind  his  assignee,  except  where  he  creates  certain  well-known  inter- 
ests, such  as  easements,  recognized  by  the  common  law.*  If  a  man 
endeavors  to  create  restrictions  on  his  land  other  than  such  inter- 
ests, he  cannot  so  affix  them  to  the  land  as  to  bind  subsequent  own- 
ers. As  said  by  Lord  Brougham :  "It  must  not,  therefore,  be  sup- 
posed that  incidents  of  a  novel  kind  can  be  devised  and  attached  to 
property,  at  the  fancy  or  caprice  of  any  owner.  *  *  *  Great 
detriment  would  arise,  and  much  confusion  of  rights,  if  parties  were 
allowed  to  invent  new  modes  of  holding  and  enjoying  real  property, 
and  to  impress  upon  their  lands  and  tenements  a  peculiar  character, 
which  should  follow  them  into  all  hands,  however  remote."  ^ 

Same — In  Equity 

Courts  of  equity,  however,  have  established  a  class  of  exceptions 
to  the  above  rule.    They  have  been  mainly  confined  to  covenants  in 

419,  12  L.  R.  A.  273.  But  see  Mygatt  v.  Coe,  124  N.  Y.  212,  26  N.  E.  611,  11 
L.  R.  A.  646 ;  Id.,  142  N.  Y.  78,  36  N.  E.  870,  24  L.  R.  A.  850.  See  ''Covenants;' 
Dec.  Dig.  (Key-No.)  §§  53-56;   Cent.  Dig.  §§  22,  52,  58. 

5  Cole  V.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611 ;  Masury  v.  Southwortti.  9 
Ohio  St.  340 ;  Glenn  v.  Canby,  24  Md.  127 ;  Indianapolis  Water  Co.  v.  Nulte, 
126  Ind.  373,  26  N.  E.  72 ;  Brewer  v.  Marshall,  18  N.  J.  Eq.  337 ;  Id.,  19  N.  J. 
Eq.  537,  97  Am.  Dec.  679;  Costigan  v.  Railroad  Co.,  54  N.  J.  Law,  233,  23  Atl. 
810 ;  Lyford  v.  Railroad  Co.,  92  Cal.  93,  28  Pac.  103.  It  has  been  held  that 
the  right  to  reimbursement,  or  liability  to  reimburse,  for  the  use  of  a  party 
wall,  under  an  agreement  between  adjoining  landowners,  is  p&rsonal,  and 
that  it  does  not  run  with  the  land.  Cole  v.  Hughes,  supra ;  Todd  v.  Stokes, 
10  Pa.  155 ;  Gibson  v.  Holden,  115  111.  199,  3  N.  E.  282,  56  Am.  Rep.  146 ;  Nalle 
V.  Paggi  (Tex.  Sup.)  9  S.  W.  205,  1  L.  R.  A.  33.  But  see  Conduitt  v.  Ross,  102 
Ind.  166,  26  N.  E.  198;  King  v.  Wight,  155  Mass.  444,  29  N.  E.  644;  Mott  v. 
Oppenheimer,  135  N.  Y.  312,  31  N.  E.  1097,  17  L.  R.  A.  409.  A  covenant  to 
support  an  old  man  in  consideration  of  a  conveyance  by  him  is  personal,  and 
cannot  be  shifted  to  a  purchaser  of  the  land  from  the  grantee.  Divan  v. 
Loomis,  68  Wis.  150,  31  N.  W.  760.  See  "Covenants,"  Dec.  Dig.  (Key-No.)  §§ 
53-56;    Cent.  Dig.  §§  22,  52,  53. 

e  Gibson  v.  Porter  (Ky.)  15  S.  W.  871;  Hagerty  v.  Lee,  54  N.  J.  Law,  580, 
25  Atl.  319,  20  L.  R.  A.  031 ;  Id.,  50  N.  J.  Eq.  464,  26  Atl.  537 ;  Costigan  v. 
Railroad  Co.,  54  N.  J.  I^aw",  233,  23  Atl.  810.  See  "Covenants,"  Dec.  Dig.  (Key- 
No.)  §  70;  Cent.  Dig.  §§  70,  7i. 

7  Keppell  V.  Bailey,  2  Mylne  &  K.  517.  And  see  Masury  v.  Southworth,  9 
'Ohio  St.  340;  Weld  v.  Nichols,  17  Pick.  (Mass.)  538;  Martin  v.  Drinan,  128 
Mass  515 ;  Hazlett  v.  Sinclair,  76  Ind.  488,  40  Am.  Rep.  254 ;  West  Virginia 
Transp.  Co.  v.  Pipe  Line  Co.,  22  W.  Va.  600,  46  Am.  Rep.  527;  Brewer  v. 
Marshall,  18  N.  J.  Eq.  337 ;  National  Union  Bank  at  Dover  v.  Segur,  39  N.  J. 
Law,  184*;  Dorsey  v.  Railroad  Co.,  58  111.  65;  Kennedy  v.  Owen,  136  Mass. 
199;'  Maynard  v.  Polhemus,  74  Cal.  141,  15  Pac.  451;    Scott  v.  McMillan.  76 


472  OPERATION  OF  CONTRACT  (Ch.  9 

the  case  of  land  sold  for  building  purposes,  though  there  seems  no 
good  reason  for  any  limitation  of  the  principle  on  which  they  are 
enforced.  An  illustration  of  this  class  of  cases  is  where  the  vendor 
of  land  covenants  that  he  will  never  use  the  adjoining  land,  retain- 
ed by  him,  otherwise  than  in  a  particular  manner.  Where  he  after- 
wards sells  this  adjoining  land  to  one  who  has  ndtice  of  the  cove- 
nant, the  latter  is  bound  by  the  covenant.  The  principle  has  been 
thus  stated :  "That  this  court  has  jurisdiction  to  enforce  a  contract 
between  the  owner  of  land  and  his  neighbor  purchasing  a  part  of  it 
that  the  latter  shall  either  use  or  abstain  from  using  the  land  pur- 
chased in  a  particular  way  is  what  I  never  knew  disputed.  *  *  * 
It  is  said  that,  the  covenant  being  one  which  does  not  run  with  the 
land,  this  court  cannot  enforce  it;  but  the  question  is  not  whether 
the  covenant  runs  with  the  land,  but  whether  a  party  shall  be  per- 
mitted to  use  the  land  in  a  manner  inconsistent  with  the  contract 
entered  into  by  his  vendor,  and  with  notice  of  which  he  pur- 
chased." * 

SAME— ASSIGNMENT  OF  CONTRACTUAL  OBLIGATION 

BY  MARRIAGE 

200.  At  common  law,  upon  a  woman's  marriage  the  right  to  reduce 
her  choses  in  action  into  possession  is  transferred  to  her 
husband,  and  he  becomes  liable  jointly  with  her.  during 
coverture,  upon  her  antenuptial  contracts.  These  rules  are 
changed  by  statute  in  most  jurisdictions. 

At  common  law,  a  married  woman  is  disabled  from  acquiring  the 
benefits  of  her  antenuptial  contract,  because  she  cannot  sue  upon 

N.  T.  141 ;    Blount  v.  Harvey,  51  N.  C.  186 ;   Hartung  v.  Witte,  59  Wis.  285,  18 
N.  W.  175.    See  "Covenants,"  Dec.  Dig.  i^Key-'No.)  §  10;  Cent.  Dig.  §§  70,  11. 

8  Tulk  V.  Moxhay,  2  Phil.  774.  And  see  Trustees  of  Columbia  College  v. 
Thacher,  87  N.  Y.  312,  41  Am.  Rep.  365;  Same  v.  Lynch,  70  N.  Y.  440,  26 
Am.  Rep.  615 ;  Haskell  v.  Wright,  23  N.  J.  Eq.  389 ;  Stines  v.  Dorman,  25 
Ohio  St.  580 ;  Thurston  v.  Minke,  32  Md.  487 ;  De  Gray  v.  Clubhouse  Co.,  50 
N.  J.  Eq.  4.58,  24  Atl.  3SS ;  Clark  v.  Martin,  49  Pa.  289.  Covenant  by  grantor 
of  lots,  "his  heirs  and  assigns,"  not  to  build  improvement  on  lots  retained 
Inferior  to  specified  qualifications,  binds  his  subsequent  grantees  with  notice. 
Halle  V.  Newbold,  69  Md.  265,  14  Atl.  662.  It  has  even  been  held  that  a  cov- 
enant by  a  vendee  of  land  not  to  sell  sand  therefrom,  the  intention  being  to 
prevent  competition  with  the  vendor,  is  enforceable  against  the  covenantor's 
grantee  buying  with  notice.  Hodge  v.  Sloan,  107  N.  Y.  244,  17  N.  E.  335,  1 
Am.  St.  Rep.  816.  Agreement  for  exclusive  transportation  of  products  of  land 
by  railroad  to  be  extended  or  built  over  it  will  he  so  enforced.  Kettle  River 
R.  Co.  V.  Railway  Co.,  41  Minn.  461,  43  N.  W.  469,  6  L.  R.  A.  111.  See  "Gov- 
aiants,"  Dec.  Dig.  {Key-No.)  §  69;    Cent.  Dig.  §§  67-69. 


§    201)  ASSIGNMENT    OF    CONTRACTS  473 

it  apart  from  her  husband,  and  she  may  lose  them  altogether,  for 
tliey  are  vested  conditionally  in  the  husband,  who  may  take  them  to 
himself  by  reduction  into  possession  of  the  chose  in  action.  He 
may  also  sue  jointly  with  his  wife  for  what  is  due  on  her  contracts. 
Whatever  is  thus  obtained  passes  absolutely  to  him.'  If  the  hus- 
band does  not  thus  reduce  his  wife's  choses  in  action  into  his  pos- 
session, they  survive  to  her  if  he  dies  first,  or  pass  to  her  represen- 
tatives if  she  dies  in  his  lifetime. 

At  common  law,  the  husband  acquires  the  liabilities  of  the  wife  to 
the  extent  that  he  may  be  sued  jointly  with  her  on  any  contracts 
made  by  her  before  marriage.* 

Statutory  Changes  in  the  Law 

In  England  and  in  all  of  our  states  the  common  law  in  this  re- 
spect has  been  very  greatly  changed  by  statute.  In  some  states  it 
has  been  virtually  abolished  and  in  these  states  the  marriage  of  a 
woman  does  not  in  any  way  affect  her  rights  or  liabilities  under 
contracts  entered  into  before  marriage.^" 


SAME— ASSIGNMENT  OF  CONTRACTUAL  OBLIGATION 

BY  DEATH 

201.  Death  passes  to  the  executors  or  administrators  of  the  deceas- 
ed all  rights  of  action  in  respect  of  the  personal  estate,  and, 
to  the  extent  of  his  estate,  all  liabilities  chargeable  upon  it. 
This  does  not  include — 

EXCEPTIONS — (a)  Contracts  depending  on  the  personal  serv- 
ices or  skill  of  the  deceased. 

(b)  Contracts  the  breach  of  which  involves  a  purely  personal 
loss. 

On  the  death  of  a  person  all  his  personal  estate  passes,  by  opera- 
tion of  law,  to  his  executors  or  administrators,  and  with  it  also  pass 
all  rights  of  action  on  contract  which  will  affect  such  estate,  and  all 
liabilities  arising  out  of  contract  which  are  chargeable  upon  it;^^ 

•  HOWARTH  V.  WARMSER,  58  111.  48,  Throckmorton  Caa  Contracts,  329. 
See  "Husband  and  Wife,"  Dec.  Dig.  {Key-No.)  §  213;    Cent.  Dig.  §§  787-790. 

10  HOWARTH  V.  WARMSER,  supra.  See  "Husband  and  Wife,"  Dec.  Dig. 
(Key-No.)  §§  112-114;   Cent.  Dig.  §§  S9S-S95. 

11  Anson,  Cont.  (4th  Ed.)  235 ;  BILLINGS'  APPEAL,  lOG  Pa.  558,  Throck- 
morton Cas.  Contracts,  330;  Jewett  v.  Smith,  12  Mass.  309;  Snodgrass  v. 
Cabiness,  15  Ala.  160;  Henderson  v.  Henshall,  54  Fed.  320,  4  0.  C.  A.  357; 
Beecher  v.  Buckingham,  18  Conn.  110,  44  Am.  Dec.  580;  Shirley  v.  Healds,  34 
N  IT.  407 ;  Drumraond  v.  Crane,  159  Mass.  577,  35  N.  E.  90,  23  L.  R.  A,  707, 
and  note,  38  Am.  SL  Rep.  4G0 ;    Dumont  v.  Heighton,  14  Ariz.  25,  123  Pac.  306, 


474 


OPERATION    OF    CONTRACT  (Ch.  9 


and  actions  on  such  contracts  are  brought  by  or  against  the  person- 
al representative  in  his  own  name.^=^  Covenants,  for  instance, 
which  are  attached  to  a  leasehold  estate,  pass,  as  to  benefit  and  li- 
ability, with  the  personalty  to  the  executor  or  administrator;  but 
covenants  affecting  freehold  estates,  such  as  covenants  for  title  in  a 
conveyance  of  freehold  property,  pass  to  the  heir  or  devisee  of  the 
realty. 

This  rule  does  not  include  such  contracts  as  depend  upon  the  per- 
sonal services  or  the  skill  of  the  deceased,  which  expire  on  the  death 
of  either  of  the  parties."  An  apprenticeship  contract  is  thus  ter- 
minated by  the  death  of  the  master,  and  no  claim  to  the  services  of 
the  apprentice  survives  to  the  executor  or  administrator.^*  In  like 
manner,  breach  of  a  contract  which  involves  a  purely  personal  loss 
does  not  confer  a  right  of  action  upon  executors  or  administrators. 
Thus,  where  an  executor  sued  for  a  breach  of  promise  to  marry  his 
testatrix,  the  promise  having  been  broken,  and  the  right  of  action 
having  accrued  in  her  lifetime,  it  was  held  that  he  could  not  re- 
cover, as  it  did  not  clearly  appear  that  the  breach  of  contract  had 
resulted  in  damage  to  the  personal  estate. ^^ 

Executors  and  administrators  take  no  personal  benefit  from  the 
contracts  of  the  decedent,  nor  are  they  personally  liable.  They 
merely  stand  in  his  shoes,  and  represent  him  to  the  extent  of  his 
estate. 

39  L.  R.  A.  (N.  S.)  1187.  This  subject  is  covered  by  statute  in  most  of  the 
states.  See  "Executors  and  Administrators"  Dec.  Dig.  {Key-No.)  §  43;  Cent. 
Dig.  §§  279,  281. 

12  Potter  V.  Van  Vranken,  36  N.  T.  619.  See  "Executors  and  Administra- 
tors," Dec.  Dig.  (Key-No.)  §  J,3S;  Cent.  Dig.  §§  1165-1185. 

13  Baxter  v.  Burfield,  2  Str.  1266;  Dickinson  v.  Calahan's  Adm'rs,  19  Pa. 
227;  BILLINGS'  APPEAL,  106  Pa.  558,  Throckmorton  Cas.  Contracts,  330; 
Yerrington  v.  Greene,  7  R.  I.  589,  84  Am.  Dec.  578 ;  Lacy  v.  Getman,  119  N. 
Y.  109,  23  N.  E.  452,  6  L.  R.  A.  728,  16  Am.  St.  Rep.  806 ;  Marvel  v.  Phillips, 
162  Mass.  399,  38  N.  E.  1117,  26  L.  R.  A.  416,  44  Am.  St.  Rep.  370 ;  Blakely 
V.  Sousa,  197  Pa.  305,  47  Atl.  2S6,  80  Am.  St  Rep.  821.  See  post,  p.  596.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  Sll;  Cent.  Dig.  §§  1J,48-1J,56;  "Master 
and  Servant,"  Dec.  Dig.  {Key-No.)  §§  2G,  28;  Cent.  Dig.  §§  26,  21. 

14  Baxter  v.  Burfield,  2  Strange,  1266.  See  "ApprenUces,"  Dec.  Dig.  {Key- 
No.)  §  10;   Cent.  Dig.  §  20. 

1 5  Chamberlain  v.  Williamson,  2  Maule  &  S.  408.    And  see  Finlay  v.  Chimey, 
•  20  Q.  B.  D.  494;    Stebbins  v.  Palmer,  1  Pick.   (Mass.)  71,  11  Am.  Dec.  146; 

Smith  V.  Sherman,  4  Cush.  (Mass.)  408;  Chase  v.  Fitz,  132  Mass.  359;  Wade 
V.  Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250;  Hovey  v.  Page,  55  Me.  142;  Lat- 
timore  v.  Simmons,  13  Serg.  &  R.  (Pa.)  183 ;  Grubbs  v.  Suit,  32  Grat.  (Va.) 
203,  34  Am.  Rep.  765.  -See  "Abatement  and  Revival,"  Dec.  Dig.  {Key-No.)  § 
53;  Cent.  Dig.  §§  251,  252;  "Contracts,"  Dec.  Dig.  {Key-No.)  §  311;  Cent. 
Dig.  §§  144^1456. 


§§    203-204)  JOINT    AND   SEVERAL   CONTRACTS  475 

JOINT  AND  SEVERAL  CONTRACTS 

202.  A  contract  in  which  there  are  two  or  more  parties  on  either 
or  both  sides  may  be — 

(a)  Joint; 

(b)  Several;  or 

(c)  Joint  and  several. 

Where  several  persons  enter  into  a  contract  on  the  same  side, 
either  as  promisors  or  promisees,  they  may  do  so  jointly  or  several- 
ly, or,  in  the  case  of  the  persons  bound,  jointly  and  severally,  mak- 
ing a  joint  promise  and  several  distinct  promises  at  the  same  time. 
Whether  the  contract  is  joint  or  several,  or  both  joint  and  several, 
depends  upon  the  intention  of  the  parties,  as  manifested  in  the  evi- 
dence of  the  contract.  There  are  a  number  of  rules  for  construing 
contracts,  and  determining  this  intention;  but  we  must  postpone 
their  consideration  until  we  come  to  treat  of  the  interpretation  of 
contracts.^®  We  shall  deal  here  only  with  the  rules  that  govern 
the  operation  of  the  contract,  after  such  intention  has  been  de- 
termined. 

The  rules  which  we  shall  state  are  the  rules  of  the  common  law. 
It  is  never  safe  to  assume  that  they  are  still  in  force  in  any  par- 
ticular jurisdiction,  for  they  have  been  much  modified  by  statute.^^ 


SAME— JOINT  CONTRACTS 

203.  Where  several  parties  join  in  a  promise, 

(a)  They  are  each  liable  for  the  whole  debt  or  performance. 

(b)  They  are  jointly,  and  not  separately,  liable,  and  must  all  be 

sued  jointly. 

(c)  Where  oTie  of  them  dies,  the  liability  devolves  upon  the  sur- 

vivors, and,  on  the  death  of  all,  upon  the  personal  repre- 
sentative of  the  last  survivor. 

(d)  A  release  of  one,  by  act  of  the  promisee,  releases  alL 

204.  Where  a  promise  is  made  to  several  jointly, 

(a)  They  are  entitled  jointly,  and  not  separately,  and  must  join 

in  a  suit  on  the  promise. 

(b)  Where  one  of  them  dies,  the  legal  right  devolves  upon  the 

survivors,  and  on  them  alone. 

19  Post,  p.  519. 

IT  A  common  statutory  provision  is  that  all  contracts  which,  by  the  common 
law,  are  joint  only,  shall  be  construed  to  be  joint  and  several.     Kuapp  v. 


476  OPERATION  OF  CONTRACT  (Ch.  9* 

Several  persons  may  join  in  a  contract  on  one  side  or  the  other, 
or  there  may  be  several  persons  on  both  sides.  In  these  cases 
the  contract  is  said  to  be  a  joint  contract  or  joint  debt,  and  the 
persons  composing  the  respective  parties  thereto  are  called  "joint 
creditors"  or  "joint  promisees,"  and  "joint  debtors,"  or  "joint  prom- 
isors." 

Joint  Promisors 

If  several  persons  make  a  joint  promise,  each  is  liable  to  the 
promisee  for  the  whole  debt  or  liability,  notwithstanding  the 
fact  that  they  are  both  liable.^'  Neither  is  bound  by  himself,  but 
each  is  bound  to  the  full  extent  of  the  promise.  If  both  are  living;^ 
and  within  the  jurisdiction  of  the  court,  they  should  all  be  joined 
as  defendants  in  an  action  on  the  contract.^^  If  one  of  them  is 
sued  alone,  he  is  not  bound  to  answer  to  the  merits  of  the  action 
without  the  others  being  sued  with  him.  He  may  demur  if  the 
defect  appears  on  the  face  of  the  pleading,  or  plead  in  abate- 
ment if  it  does  not  so  appear.^"  If  the  defect  so  appears,  it  is 
fatal,  not  only  on  demurrer,  but  on  motion  in  arrest  of  judg- 
ment."    If  it  does  not  so  appear,  the  objection  must  be  taken 

Ilanley,  153  Mo.  App.  169,  132  S.  W.  747,     See  "Contracts,"  Dec.  Dig.   {Key- 
So.)  §§  182-18 J^;    Cent.  Dig.  §§  780-7S9. 

isBaum  v.  McAfee  (Tex.  Civ.  App.)  125  S.  W.  984.  An  agreement  between 
two  joint  obligors  that  they  shall  each  be  severally  liable  for  one-half  tlie  ob- 
ligation is  not  binding  upon  the  obligee.  Knowlton  v.  Parsons,  198  Mass.  439, 
84  N.  E.  798.    See  "Contracts,"  Dec.  Dig.  {Kei/-No.)  §  182;   Cent.  Dig.  §§  7S0- 

i'»  Smith  V.  Miller,  49  N.  J.  Law,  521,  13  Atl.  39 ;  Eller  v.  Lacy,  137  Ind. 
436,  36  N.  E.  1088 ;  Van  Leyen  v.  Wreford,  81  Mich.  606,  45  N.  W.  1116 ;  Rip- 
ley v.  Crooker,  47  Me.  370,  74  Am.  Dec.  491;  Walker  v.  Bank,  5  C.  C.  A.  421, 
56  Fed.  76;  Allin  v.  Shadburne's  Ex'r,  1  Dana  (Ky.)  68,  25  Am.  Dec.  121; 
O'Brien  v.  Bound,  2  Speer  (S.  C.)  495,  42  Am.  Dec.  384;  McCall  v.  Price,  1 
McCord  (S.  C.)  82;  Meyer  v.  Estes,  164  Mass.  457,  41  N.  E.  683,  32  L.  R.  A. 
283.  An  understanding  between  the  promisors  themselves  that  one  of  them 
shall  pay  or  perform  the  whole  debt  or  promise  does  not  affect  the  rule.  Lodge 
v.  Dicas,  3  Barn.  &  Aid.  611.  A  familiar  illustration  of  joint  promises  is  in 
'  the  case'of  partnership  debts.  All  the  partners  must  be  sued.  In  some  states 
it  is  provided  by  statute  that  all  contracts  which  by  common  law  are  joint  only 
shall  be  construed  to  be  joint  and  several.  Belleville  Sav.  Bank  v.  Winslow 
(C.  C.)  30  Fed.  4S8;  Wibaux  v.  Live  Stock  Co.,  9  Mont.  154.  22  Pac.  492.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  182;    Cent.  Dig.  §§  780-187. 

20  Rice  V.  Shute,  5  Burrows,  2611;  CITY  OF  PHILADELPHIA  v.  REEVES 
&  CABOT,  48  Pa.  472,  Throckmorton  Cas.  Contracts,  333 ;  State  v.  Chandler, 
79  Me.  172,  8  Atl.  553 ;  Nash  v.  Skinner,  12  Vt.  219,  36  Am.  Dec.  338 ;  Smith 
V.  Miller,  49  N.  J.'  Law,  521,  13  Atl.  39 ;  Seymour  v.  Mintum,  17  Johns.  (N. 
Y.)  169.  8  Am.  Dea  380 ;  Bledsoe  v.  Irvin,  35  Ind.  293 ;  Henderson  v.  Ham- 
mond, 19  Ala.  340;  Potter  v.  McCoy,  26  Pa.  4.58.  See  "Contracts,"  Dec.  Dig. 
(Key-yo.)  §  187;    Cent.  Dig.  §§  780-787. 

21  Oilman  v.  Rives,  10  Pet.  298,  9  L.  Ed.  432;    Bragg  T.  Wetzel,  5  Blackf. 


§§    203-204)  JOINT    AND    SEVERAL   CONTRACTS  477 

by  plea  in  abatement;  and,  if  the  defendant  pleads  to  the  merits, 
he  cannot  object  that  others  were  jointly  liable  with  him;^^  for, 
when  two  are  jointly  bound  in  one  bond  or  on  one  promise,  though 
neither  of  them  is  bound  by  himself,  yet  neither  of  them  can 
say  that  it  is  not  his  deed  or  promise." 

Sam  e — Survivo  rship 

Upon  the  death  of  one  of  several  joint  promisors,  the  liability 
devolves  upon  the  survivors.  The  personal  representative  of  the 
deceased  promisor  cannot  be  sued  jointly  with  the  survivors.  The 
whole  liability,  in  this  way,  ultimately  devolves  upon  the  last 
surviving  promisor,  and,  after  his  death,  upon  his  representa- 
tive.^* The  estate  of  a  deceased  joint  debtor  may  be  charged 
in  equity,  unless  he  was  merely  a  surety,  and  received  no  benefit 
from  the  contract.^* 


(Ind.)  95;  Sweigart  v.  Berk,  8  Serg.  &  R.  308;  McGregor  v,  Balch,  17  Vt,  567; 
Sinsheimer  v.  Skinner  Mfg.  Co.,  165  111.  116,  46  N.  E.  262.  See  "Contracts,'* 
Dec.  Dig.  {Key-No.)  §  182;   Cent.  Dig.  §§  7S0-787. 

2  2  Rice  V.  Shute,  5  Burrows,  2611;  Richards  v.  Heather,  1  Bam.  &  Aid.  29; 
Wilson  V.  McCormick,  86  Va.  995,  11  S.  E.  976;  Elder  v.  Thompson,  13  Gray 
(Mass.)  91;  Maurer  v.  Midway,  25  Neb.  575,  41  N.  W.  393;  Mountstephen  v. 
Brooke,  1  Barn.  &  Aid.  224;  First  Nat.  Bank  v.  Hamor,  7  U.  S.  App.  69,  1 
C.  C.  A.  153,  49  Fed.  45 ;  Nash  v.  Skinner,  12  Vt.  219,  36  Am.  Dec.  338 ;  Hicks 
V.  Cram,  17  Vt.  449;  Lieberman  v-  Brothers,  55  N.  J.  Law,  379,  26  Atl.  828; 
Coon  V.  Anderson,  101  Mich.  295,  59  N.  W.  607.  Where  joint  debtors  are  sued 
jointly,  and  a  joint  judgment  recovered,  the  whole  amount  of  the  judgment 
may  be  levied  against  one.  Bird  v.  Randall,  1  W.  Bl.  388.  Where  judgment 
is  thus  obtained  against  less  than  all  the  joint  debtors,  it  merges  or  extin- 
guishes the  right  of  action  as  against  all.  King  v.  Hoare,  13  Mees.  &  W.  494 ; 
Kendall  v.  Hamilton,  4  App.  Cas.  504;  Mason  v.  Eldred,  6  Wall.  231,  18  L.  Ed. 
783 ;  Ward  v.  Johnson,  13  Mass.  148.  Otherwise  where  the  judgment  is  re- 
covered against  one  of  the  joint  debtors  on  a  check  given  by  him  for  the  de- 
mand. Pros.ser  v.  Evans,  1  Q.  B.  (1895)  108.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  1S2;   Cent.  Dig.  §§  7S0-7S7. 

23  Whelpdale's  Case,  5  Coke,  119 ;  Rice  v.  Shute,  5  Burrows,  2613.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)  §  182;    Cent.  Dig.  §§  780-787. 

24  Richards  v.  Heather,  1  Barn.  &  Aid.  29;  Gere  v.  Clark,  6  Hill  (N.  Y.) 
350;  Brown  v.  Benight,  3  Blackf.  (Ind.)  37,  23  Am.  Dec.  373;  Foster  v.  Hoop- 
er, 2  Mass.  572 ;  Stevens  v.  Catlin,  152  111.  56.  37  N.  E.  1023 ;  Hoskinson  v. 
Eliott,  62  Pa.  393;  Atwell's  Adm'rs  v.  Milton,  4  Hen.  &  M.  (Va.)  253;  CUirk's 
Ex'rs  v.  Parish's  Ex'rs,  1  Bibb  (Ky.)  547;  Murphy  v.  Weil,  92  Wis.  467,  66  N. 
W.  532.  As  to  the  effect  of  the  death  of  a  joint  debtor  after  judgment,  see 
Leake,  Cont.  215;  Harbart's  Case,  3  Coke,  14a.  The  doctrine  of  survivorship 
is  virtually  abolished  by  statute  in  most  states.  Taylor  v.  Taylor,  5  Humph. 
(Tenn.)  110;  Williams  v.  Bradley,  5  Ohio  Cir.  Ct.  R.  114;  Fishery.  Hopldns, 
4  Wyo.  379,  34  Pac.  890;  Bachelder  v.  Fiske,  17  Mass.  464.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  182;   Cent.  Dig.  §§  780-787. 

2  5  Davis  v.  Van  Buren,  72  N.  Y.  5S7 ;  Richardson  v.  Draper,  87  N.  Y.  337. 
Bee  "Contracts,"  Dec.  Dig.  (Key-No.)  §  182;   Cent.  Dig.  §§  780-787. 


478  OPERATION  OF  CONTRACT  (Ch.  9 

Same — Release 

At  common  law,  a  release  of  one  joint  debtor  by  operation  of 
law — as  by  a  discharge  in  bankruptcy  or  insolvency — does  not 
affect  the  liability  of  the  others.^'  It  is  otherwise,  however,  where 
the  release  is  by  an  act  of  the  creditor.  In  the  latter  case  the 
other  debtors  are  discharged. ^^  A  mere  covenant  not  to  sue  one 
joint  debtor,  it  seems,  does  not  operate  as  a  discharge  of  the 
others.^®      .     , 

Joint  Promisees 

Where  the  contract  is  joint  on  the  part  of  the  promisees,  all 
must  join  in  suing  upon  it.^"  Even  a  disclaimer  by  one,  if  with- 
out the  assent  of  the  promisor,  will  not  entitle  the  others  to  sue 
alone.'"  If  one  of  them  is  not  joined  as  a  plaintiff,  the  defendant 
may  plead  in  abatement;  but  failure  to  do  so  will  not  constitute 
a  waiver  of  the  defect.^^ 

2«  Leake,  Cont.  214.  Otherwise  if  creditor  presents  claim,  under  statute 
providing  ttiat  creditor  so  doing  shall  be  barred.  Mungan  v.  French,  60  N. 
J.  Law,  12,  36  Atl.  771.  See  "Release,"  Dec.  Dig.  (Key-No.)  §  28;  Cent.  Dig. 
§§  57-62. 

27  Brooks  V.  Stuart,  9  Adol.  &  E.  854 ;  Maslin's  Ex'rs  v.  Hiett,  37  W.  Va.  15, 
16  S.  E.  437;  Rowley  v.  Stoddard,  7  Johns.  (N.  Y.)  207;  Hale  v.  Spaulding,  145 
Mass.  482,  14  N.  E.  534,  1  Am.  St.  Rep.  475 ;  Goldbeck  t.  Bank,  147  Pa.  267, 
23  Atl.  565;  Lunt  v.  Stevens,  24  Me.  534;  Allin  v.  Shadbume,  1  Dana  (Ky.) 
68,  25  Am.  Dec.  121 ;  Newcomb  v.  Raynor,  21  Wend.  (N.  Y.)  108,  34  Am. 
Dec.  219.  This  is  changed  by  statute  in  some  states.  Otherwise  if  the  instru- 
ment shows  a  contrary  intention,  as  by  a  reservation  of  rights  against  other 
parties.  North  v.  Wakefield,  13  Q.  B.  536;  Yates  v.  Donaldson,  5  Md.  389, 
61  Am.  Dec.  283 ;  Whittemore  v.  Judd  Linseed  &  Sperm  Oil  Co.,  124  N.  Y.  565, 
27  N.  E.  244,  21  Am.  St  Rep.  708 ;  Parsons,  Cont.  29.  See  article  by  Professor 
Samuel  Williston  on  "Releases  and  Covenants  not  to  Sue  Joint,  or  Joint  and 
Several  Debtors,"  25  Harv.  L.  Rev.  203.  See  "Release,"  Dec.  Dig.  (Key-No.)  § 
2S;   Cent.  Dig.  §§  57-62. 

28  Clayton  v.  Kynaston,  2  Salk.  573;  Shed  v.  Pierce,  17  Mass.  628;  Couch 
v.  Mills,  21  Wend.  (N.  Y.)  424;  Walker  v.  McCulloch,  4  Greenl.  (Me.)  421; 
McLellan  v.  Bank,  24  Me.  566;  Rowley  v.  Stoddard,  7  Johns.  (N.  Y.)  207.  See 
"Release,"  Dec.  Dig.  (Key-No.)  §  28;   Cent.  Dig.  §§  57-62. 

2  9  Eccleston  v.  Clipsham,  1  Wms.  Saund.  153 ;  Hatsall  v.  Griffith,  2  Cromp.  & 
M.  679;  Pease  v.  Hirst,  10  Barn.  &  C.  122;  Dob  v.  Halsey,  16  Johns.  (N.  Y.) 
34,  8  Am.  Dec.  293 ;  Gould  v.  Gould,  6  Wend.  (N.  Y.)  263 ;  Hewes  v.  Bayley. 
20  Pick.  (Mass.)  96;  Archer  v.  Bogue,  3  Scam.  (111.)  520;  Wilson  v.  Wallace, 
8  Serg.  &  R.  (Pa.)  53;  Slaughter  v.  Davenport,  151  Mo.  26,  51  S.  W.  471.  See, 
also,  Clark  v.  Great  Northern  R.  Co.  (C.  C.)  81  Fed.  282.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  330;   Cent.  Dig.  §§  1589-lGOJf. 

30  Wetherell  v.  Langston,  1  Exch.  034;  Angus  v.  Robinson,  59  Vt.  585,  8 
Atl.  497,  59  Am.  Rep.  758;  Whart.  Cont  814.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  330;    Cent.  Dig.  §§  15S9-1G0J,. 

31  If  one  of  the  joint  promisees  is  omitted,  and  the  defect  appears  upon 
the  record,  it  may  be  objected  to  by  demurrer,  or  by  motion  in  arrest  of  judg- 
ment or  by  error.     Petrie  v.  Bury,  3  Barn.  &  C.  353;    Pugh  v.  Stringfield,  3 


§§    205-20G)  JOINT   AND   SEVERAL   CONTBACTS  479 

Sam  e — Survivorship 

Where  one  of  several  joint  promisees  dies,  the  legal  right  under 
the  contract  devolves  upon  the  survivors,  and  they  only  can  sue 
on  the  contract.  The  representative  of  the  deceased  promisee 
cannot  be  joined,  nor  can  he  sue  alone.'' 

Same — Release 

A  payment  of  the  debt  to  one  of  several  joint  promisees  is  a 
discharge  of  the  debt.  So,  also,  one  of  the  promisees,  without 
the  others  joining,  may  give  a  valid  release  of  the  debt,  and  it  will 
bind  the  others.^^ 


SAME— SEVERAL  CONTRACTS 

205.  If  two  or  more  parties  bind  themselves  severally  to  another 

in  respect  of  the  same  matter  or  debt,  their  liability  is 
separate  and  distinct,  and  they  cannot  be  sued  jointly. 

206.  If  one  party  binds  himself  to  several  parties  severally,  their 

right  to  enforce  the  promise  is  separate. 

On  the  other  hand,  several  persons  may  bind  themselves  sev- 
erally to  another  in  respect  of  the  same  matter  or  debt,  so  that 

C.  B.  (N.  S.)  2;  Wetherell  v.  Langston,  1  Exch.  634;  Ehle  v.  Purdy,  6  Wend. 
(N.  Y.)  629;  Baker  v.  Jewell,  6  Mass.  460,  4  Am.  Dec.  162;  Beach  v.  Hotch- 
kiss,  2  Conn.  697;  Wiggin  v.  Cumings,  8  Allen  (Mass.)  353.  If  the  defect 
does  not  appear  upon  the  record,  there  would  be  a  variance  between  the  con- 
tract as  pleaded  and  proved,  which,  unless  amended,  would  be  fatal.  Jell  v. 
Douglas,  2  B.  &  Aid.  374 ;  Chanter  v.  Leese,  4  Mees.  &  W.  295 ;  Hallett  v. 
Gordon,  122  Mich.  567,  81  N.  W.  556,  82  N.  W.  827.  See  "Parties,"  Dec.  Dig. 
{Key-No.)  §  80;   Cent.  Dig.  §§  123-131,  170. 

32  Martin  v.  Crump,  2  SalU.  444;  Anderson  v.  Martindale,  1  East,  497;  Pet- 
ers V.  Davis,  7  Mass.  257;  Murray  v.  Mumford,  6  Cow.  (N.  Y.)  441;  Supreme 
Lodge  Knights  and  Ladies  of  Honor  v.  Portingall,  167  111.  291,  47  N.  E.  203, 

59  Am.  St.  Rep.  206;  Mcintosh  v.  Zaring,  150  Ind.  301,  49  N.  E.  164.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  18'2;   Cent.  Dig.  §§  780-787. 

33  Rawstome  v.  Gandell,  15  Mees.  &  W.  304;  Wilkinson  v.  Lindo,  7  Mees.  & 
W.  81;  Myrick  v.  Dame,  9  Cush.  (Mass.)  248;  Tuckerman  v.  Newhall,  17 
Mass.  581;  Bruen  v.  Marquard,  17  Johns.  (N.  Y.)  58;  Pierson  v.  Hooker,  3 
Johns.  (N.  Y.)  68,  3  Am.  Dec.  467;  Napier  v.  McLeod,  9  Wend.  (N.  Y.)  120; 
Osbom  V.  Martha's  Vineyard  R.,  140  Mass.  549,  5  N.  E.  486;    Moore  v.  Bevier, 

60  Minn.  240,  62  N.  W.  281.  Where  a  partner  in  a  firm  doing  business  in  the 
state,  to  which  a  citizen  of  the  state  was  indebted,  was  a  nonresident,  a  dis- 
charge of  the  debtor  in  insolvency  by  a  court  of  the  state,  since  it  did  not  af- 
fect the  rights  of  the  nonresident,  did  not  discharge  the  debt.  Chase  v.  Henry, 
166  Mass.  577,  44  N.  E.  988,  55  Am.  St.  Rep.  423.  See  "Payment,"  Dec.  Dig. 
{Key-No.)  §  5;  Cent.  Dig.  §7;  "Release,"  Dec.  Dig.  {Key-No.)  §  4;  Cent.  Dig. 


480  OPERATION  OF  CONTRACT  (Ch.  9 

the  creditor  is  entitled  to  claim  the  whole  debt  or  performance 
against  each  debtor  separately."  In  such  case  the  promisors 
must  be  sued  separately;  they  cannot  be  sued  jointly."  Where 
the  promisors  are  severally  liable,  and  therefore,  of  course,  where 
they  are  both  jointly  and  severally  liable,  a  judgment  against 
less  than  all  of  them  does  not  discharge  the  others  until  it  has  been 
satisfied. '°  Again,  one  person  may  bind  himself  to  each  of  several 
persons,  provided  the  interest  of  each  in  the  subject-matter  of  the 
promise  is  several,  so  that  each  promisee  is  separately  entitled 
to  sue  thereon.'^ 

Survivorship 

The  doctrine  of  survivorship  applicable  to  joint  contracts  does 
not  apply  to  several  contracts.^* 


SAME— CONTRACTS  BOTH  JOINT  AND  SEVERAL 

207.  Where  a  contract  in  respect  of  the  promisors  is  both  joint  and 
several, 

(a)  The  promisee  may  sue  all  the  promisors  jointly,   or  each 

one  separately. 

(b)  If  he  sues  jointly,  he  must  sue  all  the  promisors;    he  can- 

not sue  less  than  all  jointly. 

84  Lurton  v.  Gilliam,  1  Scam.  (111.)  577,  33  Am.  Dec.  430.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  183;  Cent.  Dig.  §§  780-788. 

3  5  Davis  V.  Belford,  70  Mich.  120,  37  N.  W.  919;  Price  v.  Railroad  Co.,  18 
Ind.  137 ;  Sims  v.  Clark,  91  Ga.  302,  18  S.  E.  158 ;  Streator  v.  Paxton,  201 
Pa.  135,  50  Atl.  926.  This  is  changed  by  statute  in  most  states.  See  Steffes 
V.  Lemke,  40  Minn.  27,  41  N.  W.  302;  Wibaux  v.  Live-Stock  Co.,  9  Mont.  154, 
22  Pac.  492 ;  Brown  v.  McKee,  108  N.  C.  387,  13  S.  E.  8 ;  Wallis  v.  Carpenter, 
13  Allen  (Mass.)  19;  Costigan  v.  Lunt,  104  Mass.  217.  Sec  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  183;  Cent.  Dig.  §§  780-788. 

36  Ward  V.  Johnson,  13  Mass.  148;  Harlan  v.  Berry,  4  G.  Greene  (Iowa) 
212.    See  "Contracts,"  Dec.  Dig..  (Key-No.)  §  183;   Cent.  Dig.  §§  780-788. 

3  7  Keightley  v.  Watson,  3  Ex.  716;  Rorabacher  v.  Lee,  16  Mich.  169;  Hall 
V.  Leigh,  8  Cranch,  50,  3  L.  Ed.  484;  Chanter  v.  Leese,  4  Mees.  &  W.  295; 
Geer  v.  School  Dist,  6  Vt.  76 ;  Catawissa  R.  Co.  v.  Titus,  49  Pa.  277 ;  Yates 
V.  Foot,  12  Johns.  (N.  Y.)  1;  Burton  v.  Henry,  90  Ala.  281,  7  South.  925; 
Emmeluth  v.  Home  Benefit  Ass'n,  122  N.  Y.  130,  25  N.  E.  234,  9  L.  R.  A.  704 ; 
Shipman  v.  Straitsville  Cent.  Min.  Co.,  158  U.  S.  356,  15  Sup.  Ct  886,  39  L.  Ed. 
1015.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  183;   Cent.  Dig.  §§  780-788. 

38  Enys  V.  Donnithorne,  2  Burrows,  1190;  Carthrae  v.  Brown,  3  Leigh  (Va.) 
98,  23  Am.  Dec.  255.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  183;  Cent.  Dig. 
§§  780-788. 


§    208)  JOINT   AND   SEVERAL   CONTRACTS  481 

Again,  several  persons  may  concurrently  contract  respecting  the 
same  matter,  binding  themselves  jointly  and  also  severally.** 

Where  the  promise  is  both  joint  and  several,  the  promisee  may, 
at  his  election,  either  sue  all  the  promisors  jointly,  or  each  one 
of  them  separately.*"  But  he  must  do  one  or  the  other.  He  can- 
not sue  less  than  all  of  them  jointly.  If,  for  example,  there  are 
three  promisors,  he  cannot  join  two.*^ 

A  promise  cannot  be  so  made  in  respect  of  one  and  the  same 
matter  as  to  entitle  several  persons  under  it  both  jointly  and  sever- 
ally. They  must  either  be  entitled  under  it  jointly  only,  or  several- 
ly only.*^ 

Survivorship 

As  we  have  seen,  the  doctrine  of  survivorship  does  not  apply  to 
several  contracts.  It  necessarily  follows  that  -it  does  not  apply  to 
joint  and  several  contracts. 


SAME— CONTRIBUTION  BETWEEN  JOINT  DEBTORS 

208.  Where  one  of  several  joint  debtors  pays  the  whole  debt,  he 
may,  in  the  absence  of  an  agreement  to  the  contrary,  en- 
force contribution  from  the  others ;  that  is,  he  may  recover 
from  them  their  proportionate  share  of  the  debt. 

The  rights  and  liabilities  of  persons  who  have  contracted  jointly 
or  severally  respecting  the  same  matter  as  between  themselves  de- 
pend upon  the  relation  in  which  they  stand,  and  the  agreement  or 
understanding  upon  which  they  have  joined  in  the  contract.  In  gen- 
eral the  contract  itself  is  independent  of  such  relation  or  agreement. 
In  contracts  of  guaranty  or  suretyship,  for  instance,  made  between 
the  creditor  and  the  principal  debtor  and  his  sureties,  the  principal 
debtor  and  the  sureties  are  usually  all  made  debtors  in  equal  degree 

3  9  Leake,  Cont.  217;  Beecham  v.  Smith,  El.,  Bl.  &  El.  442;  liemmenway  v. 
Stone,  7  Mass.  58,  5  Am.  Dec.  27;  Klapp  v.  Kleckner,  3  Watts  &  S.  (Pa.)  519. 
See  "Contracts,"  Dec.  Dig.   (Kev-No.)  §  184;   Cent.  Dig.  §  7S9. 

4  0  Schilling  v.  Black,  49  Kan.  552,  31  Pac.  143;  Carter  v.  Carter,  2  Day 
(Conn.)  442,  2  Am.  Dec.  113.  A  judgment  against  all  Is  not  a  bar  to  an  action 
against  each.  People  v.  Harrison,  82  111.  84 ;  Davis  v.  Sanderlin,  119  N.  0.  84, 
25  S.  E.  815.  Contra,  United  States  v.  Price,  9  How.  83,  13  L.  Ed.  56.  Sec 
"Contracts,"  Dec.  Dig.  {Key-'No.)  §  184;   Cent.  Dig.  §  189. 

41  PRESIDENT,  ETC.,  OF  BANGOR  BANK  v.  TREAT,  6  Greenl.  (Me.)  207, 
19  Am.  Dec.  210,  Throckmorton  Ca.s.  Contracts,  3.'^5;  State  v.  Chandler,  79  Me. 
172,  8  Atl.  553.    See  "Contracts;'  Dec.  Dig.  (Eey-No.)  §  184;   Gent.  Dig;  §  7S.9 

42  Slingsby's  Case,  5  Coke,  18b;  Anderson  v.  Martindale,  1  East,  497;  Brad 
burne  v.  Botfield,  14  Mee.s.  &  W.  573 ;  Eveleth  v.  Sawyer,  90  Me.  227,  52  At> 
G39.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  i  184;  Cent.  Dig.  §  789. 

Clark  Cont. (3d  Ed.) — 31 


482  OPERATION  OF  CONTRACT  (Ch.  9 

to  the  creditor,  who  may  recover  the  whole  debt  against  all  or  any 
of  them.  As  between  themselves,  however,  the  principal  debtor  is 
solely  liable;  and,  if  the  surety  is  called  upon  by  the  creditor  to  pay 
any  part  of  the  debt,  he  may,  upon  payment,  recover  the  amount 
from  the  principal  debtor.*^  So,  where  there  are  several  sureties, 
who  are  all  primarily  liable  for  the  whole  debt  to  the  creditor,  and 
one  of  them  is  called  upon  to  pay,  each  of  the  cosureties  becomes 
ratably  indebted  to  him  for  contribution.**  This  rule  is  not  limited 
to  contribution  between  sureties,  but  applies  to  joint  contractors 
generally.  Where  one  of  them  is  compelled  to  pay  the  whole  debt, 
the  law  creates  a  promise  on  the  part  of  the  others  to  pay  him  their 
proportion,  and  he  may  sue  them  thereon.*'  The  liability  is  quasi 
contractual.  This. doctrine  of  contribution  applies  where  theZSon^ 
tract  is  Jomt,  or  both  joint  and  several,  but  not  where  it  is  seyeral 
only.  Formerly  the  right  to  contribution  could  only  be  enforced  in 
equity,  but  now,  except  as  between  sureties,  it  may  be  enforced  at 
law,  as  well  as  in  equity.  In  some  jurisdictions  contribution  be- 
tween sureties  can  still  be  enforced  in  equity  only,  except  where  a 
statute  provides  otherwise.*® 

The  principal  contract  may  in  some  cases  be  affected  by  the 
rights  and  relations  of  ^he  several  parties  who  join  in  it.  For  in- 
stance, in  contracts  of  guaranty  or  suretyship,  the  creditor  is  bound, 
upon  principles  of  equity,  to  abstain  from  any  dealing  with  the 
debtor  which  may  prejudice  the  surety.  If  he  binds  himself  to 
give  further  time  to  the  debtor,  without  the  consent  of  the  surety, 
the  latter  is  discharged.*^ 

4  3  Post,  p.  G28,  note  22. 

*i  Post,  p.  628.  The  quasi  contract  for  contribution  Is  several  and  not  Joint. 
A  surety  therefor  may  enforce  contribution  against  the  estate  of  a  deceased 
cosurety.  Bachelder  v.  Fiske.  17  Mass.  464 ;  Handley  v.  Heflin,  84  Ala.  600, 
4  South.  725.  See  "Contribution,"  Dec.  Dig.  (Key-No.)  §  4;  Cent.  Dig.  §§  S,  4; 
"Principal  and  Surety;'  Dec.  Dig.  (Key-No.)  §§  191,-196;  Cent.  Dig.  §§  605-631. 

45  Doremus  v.  Selden,  19  Johns.  (N.  Y.)  213;  Sears  v,  Starbird,  78  Cal.  225, 
20  Pac.  547;  Fletcher  v.  Grover,  11  N.  H.  368,  35  Am.  Dec.  497;  Jeffries  v. 
Ferguson,  87  Mo.  244;  Foster  v.  Burton,  62  VL  239,  20  Atl.  326;  Logan  v. 
Trayser,  77  Wis.  579,  46  N.  W.  877.  See  "Contribution,"  Dec.  Dig.  (Key-No.)  § 
S;   Cent.  Dig.  §§  3,  4- 

46  Longley  v.  Griggs,  10  Pick.  (Mass.)  121 ;  McDonald  v.  Magruder,  3  Pet. 
470,  7  L.  Ed.  744.  See  "Contribution"  Dec.  Dig.  (Key-No.)  §  9;  Cent.  Dig.  §§ 
14-22. 

4T  Rees  V.  Berrington,  2  Ves.  Jr.  540;  Pooley  v.  Harradine,  7  El.  &  Bl.  431 ; 
Gordon  v.  Bank,  144  U.  S.  97,  12  Sup.  Ct.  657,  36  L.  Ed.  .".fid;  Chemical  Co.  of 
Canton  v.  Pegrara,  112  N.  C.  614,  17  S.  B.  298;  Durhin  v.  Kuney,  19  Or.  71,  23 
I'ac.  661.    See  "Contribution"  Dec.  Dig.  (Key-No.)  §  3;   Cent.  Dig.  §§  3,  4. 


§§    209-213)  INTERPRETATION    OF    CONTRACT  ^83 

CHAPTER  X 
INTERPRETATION  OF  CONTRACT 

209-213.  Rules  Relating  to  Evidence — In  General — Parol  Evidence. 
214-215.  Proof  of  Document 

216.  Evidence  as  to  Fact  of  Agreement. 

217.  Evidence  as  to  Terms  of  Contract. 
218-220.  Rules  of  Construction— General  Rules. 

221.  Rules  as  to  Time. 

222-223.  Rules  as  to  Penalties  and  Liquidated  Damages. 

224.  Joint  and  Several  Contracts. 

■  We  have  next  to  consider  the  mode  in  which  the  courts  deal  with 
a  contract  when  it  comes  before  them  in  litigation,  or  the  interpre- 
tation of  contracts.  In  considering  this  question  we  have  to  learn 
how  the  existence  and  the  terms  of  a  contract  are  proved;  how  far, 
when  proved  to  exist  in  writing,  they  can  be  modified  by  evidence 
extrinsic  to  that  which  is  written ;  and  what  rules  have  been  adopt- 
ed for  construing  the  meaning  of  the  terms  when  fully  before  the 
court.  The  subject,  therefore,  divides  itself  into  (1)  rules  relating 
to  evidence,  and  (2)  rules  relating  to  construction.  Under  the  first 
head  we  have  to  consider  the  sources  to  which  we  may  go  for  the 
purpose  of  ascertaining  the  expression  by  the  parties  of  their  com- 
mon intention.  Under  the  second  we  have  to  consider  the  rules 
which  exist  for  construing  that  intention  from  expressions  ascer- 
tained to  have  been  used.^ 

RULES    RELATING   TO    EVIDENCE— IN   GENERAL— PA- 
ROL EVIDENCE  =» 

209.  The  circumstances  under  which  an  alleged  contract  by  word 

of  mouth  was  made,  what  was  said  and  done  by  the  par- 
ties, and  their  intention  to  contract,  are  questions  of  fact 
for  the  jury.  Whether  what  was  said  and  done  amounts  to 
a  contract,  and  its  effect,  are  questions  of  law  for  the  court. 

210.  Where  a  man  is  proved  to  have  made  a  contract  by  word  of 

mouth  upon  certain  terms,  he  cannot  say  he  did  not  mean 
what  he  said. 

211.  A  contract,  or  portion  thereof,  reduced  to  writing,  cannot  be 

altered  by  parol  evidence.  • 

1  Anson,  Cont  (4th  Ed.)  237. 

«  Following  substantially  Anson,  Cont  (4th  Ed.)  238-240. 


484  INTERPRETATION  OF  CONTRACT  (Ch.  10 

212.  If  a  contract  is  under  seal,  the  instrument  itself  is  the  con- 

tract, and  its  proof  proves  the  contract. 

213.  A  writing  not  under  seal,  whether  required  by  the  statute  of 

frauds  or  not,  is  not  itself  the  contract,  but  only  evidence  of 
the  contract,  so  that  a  simple  contract  may  have  to  be 
proved  by  writing,  or  by  proof  of  words  or  acts,  or  partly 
by  one  and  partly  by  the  other. 

If  a  dispute  arises  as  to  the  terms  of  a  contract  made  by  word  of 
mouth  or  by  acts,  or  partly  by  both,  it  is  necessary,  in  the  first  in- 
stance, to  ascertain  what  was  said  or  done,  and  the  circumstances 
under  which  the  supposed  contract  was  formed.  These  are  ques- 
tions of  fact  to  be  determined  by  the  jury  from  the  evidence  ad- 
duced before  them.  When  a  jury  has  found,  as  a  matter  of  fact, 
what  the  parties  said  and  did,  and  that  they  intended  to  enter  into 
a  contract,  it  is  for  the  court  to  say  whether  what  they  have  said 
or  done  amounts  to  a  contract,  and  what  is  its  effect. 

When  a  person  is  proved  to  have  made  a  contract  by  word  of 
mouth  upon  certain  terms,  he  cannot  be  heard  to  say  that  he  did 
not  mean  what  he  said.  The  law  imputes  to  a  person  a  state  of 
mind  or  intention  corresponding  to  the  rational  and  honest  meaning 
of  his  words ;  and  not  only  of  his  words,  but  of  his  actions  as  well ; 
and  where  the  conduct  of  a  person  towards  another,  judged  by  a 
reasonable  standard,  manifests  an  intention  to  agree  in  regard  to 
,  some  matter,  that  agreement  is  established  in  law  as  a  fact  by  proof 
of  that  conduct,  whatever  may  be  the  real  but  unexpressed  state 
of  his  mind  on  the  matter. 

The  principle  above  stated  applies  also  to  contracts  made  in  writ- 
ing. Where  parties  have  put  into  writing  any  portion  of  the  terms 
of  their  agreement,  they  cannot  alter  by  parol  evidence  that  which 
is  written ;  and,  where  the  writing  purports  to  be  the  whole  of  the 
agreement,  it  can  neither  be  added  to  nor  varied  by  parol  evidence 
of  their  unexpressed  intention. 

It  is  not  necessary  for  us  to  discuss  the  rules  of  evidence  as  re- 
gards purely  oral  contracts,  for  proof  of  a  contract  made  by  word 
of  mouth  is  a  part  of  the  general  law  of  evidence.  Our  considera- 
tion of  the  rules  of  evidence  will  therefore  be  confined  to  their  ef- 
fect upon  written  contracts  and  contracts  under  seal. 

Admissible  evidence  extrinsic  to  such  contracts  falls  under  three 
heads  :^  (1)  Evidence  as  to  the  fact  that  there  is  a  document  pur- 
porting to  be  a  contract,  or  part  of  a  contract.  (2)  Evidence  that 
the  professed  contract  is  in  fact  what  it  professes  to  be.  It  may 
lack  some  element  necessary  to  the  formation  of  contract,  or  be 


§§    209-213)  RULES    RELATING   TO    EVIDENCE  485 

subject  to  some  parol  condition  upon  which  its  existence  as  a  con- 
tract depends.  (3)  Evidence  as  to  the  terms  of  the  contract.  These 
may  require  illustration  which  necessitates  some  extrinsic  evi- 
dence; or  they  may  be  ambiguous,  and  then  may  be  in  like  man- 
ner explained;  or  they  may  comprise,  unexpressed,  a  custom  or 
usage  the  nature  and  effect  of  which  have  to  be  proved. 

Difference  between  Formal  and  Simple  Contracts 

Before  taking  up  these  questions  as  to  the  admissibility  of  evi- 
dence it  will  be  well  to  note  the  difference  between  contracts  un- 
der seal  and  simple  contracts  in  writing,  as  illustrated  by  the  rules 
of  evidence  respecting  them.  A  contract  under  seal,  as  we  have 
seen,  derives  its  validity  from  the  form  in  which  it  finds  expression ; 
therefore,  if  the  instrument  is  proved,  the  contract  is  proved,  unless 
it  can  be  shown  to  have  been  executed  under  such  circumstances 
as  preclude  the  formation  of  contract,  or  to  have  been  delivered  to  a 
third  person  under  conditions  which  have  remained  unfulfilled,  so 
that  the  deed  is  no  more  than  an  escrow.  A  written  contract  not 
under  seal,  however,  is  not  the  contract  itself,  but  only  evidence  of 
the  contract, — a  record  of  the  contract.'  Even  where  statutory  re- 
quirements for  writing  exist,  as  under  the  statute  of  frauds,  the 
writing  is  nothing  more  than  evidence  of  the  agreement.  A  written 
offer  containing  all  the  terms  of  the  contract,  signed  by  the  pro- 
poser, and  accepted  by  the  other  party  by  performance  on  his  part, 
is  enough  to  enable  the  latter  to  sue  under  the  statute  of  frauds. 
And  where  there  is  no  such  necessity  for  writing,  it  is  optional  with 
the  parties  to  express  their  agreement  by  word  of  mouth,  by  action, 
or  by  writing,  or  partly  by  one  and  partly  by  another  of  these  pro- 
cesses. It  is  always  possible,  therefore,  that  a  simple  contract  may 
have  to  be  sought  for  in  the  words  and  acts,  as  well  as  in  the  writ- 
ing, of  the  contracting  parties.  But  in  so  far  as  they  have  reduced 
their  meaning  to  writing  they  cannot  adduce  evidence  in  contradic- 
tion or  alteration  of  it.  They  put  on  paper  what  is  to  bind  them, 
and  so  make  the  written  document  conclusive  evidence  against 
them.* 

8  Wake  V.  Harrop,  6  Hurl.  &  N.  768.  See  "Contracts,"  Dec.  Dig.  (Key-Ko.)  S 
SO;  Cent.  Dig.  §  /////. 

*  Id.  -See  "Contracts,"  Dec.  Dig:  (Key-No.)  §  30;  Cent.  Dig.  §  lU;  "Evi- 
dence," Dec.  Dig.  (Key-No.)  §§  38J,,  S85;  Cent.  Dig.  §§  J757,  1758. 


486  INTERPRETATION  OP  CONTRACT  (Ch.  10 


SAME— PROOF  OF  DOCUMENT 

214.  A  contract  under  seal  is  proved  by  evidence  of  the  sealing  and 

delivery. 

215.  In  proving  a  simple  contract  evidenced  by  a  document,  parol 

evidence  is  admissible  for  the  following  purposes : 

(a)  To  show  that  the  defendant  is  the  person  who  made  the  con- 

tract. 

(b)  To  supplement  the  writing  where  it  only  constitutes  a  part 

of  the  contract. 

(c)  To  connect  several  documents  which  together  show  the  con- 

tract, except — 

EXCEPTION — Where  the  contract  is  within  the  statute  of  frauds. 

Contracts  under  Seal 

A  contract  under  seal  is  proved  by  evidence  of  the  sealing  and 
delivery.  At  common  law  it  is  necessary  to  call  one  of  the  attesting 
witnesses  where  a  contract  under  seal  is  attested;'  but  by  statute 
in  many  jurisdictions  this  is  no  longer  necessary.  Where  the  at- 
testing witnesses  are  dead,  or  without  the  jurisdiction  of  the  court, 
or  are  for  any  other  reason  incapable  of  testifying,  the  sealing  and 
delivery  of  the  deed  is  sufficiently  shown  by  proof  of  their  hand- 
writing.' In  a  number  of  states  it  has  been  considered  that  proof 
of  the  handwriting  of  the  grantor  or  obligor  furnishes  more  satis- 
factory evidence  of  its  execution  than  proof  of  the  handwriting  of 
the  subscribing  witness,  and  such  proof  has  been  held  sufficient, 
except  in  the  case  of  instruments  which  the  law  requires  to  be  at- 
tested by  witnesses.'' 

6  Burke  v.  Miller,  7  Cush.  (Mass.)  547;  Henry  v.  Bishop,  2  Wend.  (N.  Y.) 
575;  Jackson  v.  Gager,  5  Cow.  (N.  Y.)  383;  Hess  v.  Griggs,  43  Mich.  397,  5 
N.  W.  427;  McAdams'  Ex'rs  v.  Stilwell,  13  Pa.  90;  Brigham  v.  Palmer,  3 
Allen  (Mass.)  450;  Melcher  v.  Flanders,  40  N.  H.  139;  Jackson  v.  Sheldon, 
22  Me.  569;  Dorr  v.  School  Dist,  40  Ark.  237.  See  "Evidence,"  Dec.  Dig. 
{Key-No.)  §§  SIO,  SIJ,;  Cent.  Dig.  §§  15S8,  1559-1578,  15S4. 

6  Valentine  v.  Piper,  22  Pick.  (Mass.)  85,  33  Am.  Dee.  715;  Beattie  v.  Hil- 
liard,  55  N.  H.  428;  Davis  v.  Higgins,  91  N.  0.  382;  Richards  v.  Skiff,  8  Ohio 
St.  586;  Elliott  v.  Dycke,  78  Ala.  150;  Troeder  v.  Hyams,  153  Mass.  536, 
27  N.  E.  775 ;  Stebbins  v.  Duncan,  108  U.  S.  32,  2  Sup.  Ct.  313,  27  L.  Ed.  641, 
See  "Evidence,"  Dec.  Dig.   (Key-No.)  §  374;  Cent.  Dig.  §§  15S3-1612. 

7  Newsom  v.  Luster,  13  111.  175 ;  Cox  v.  Davis,  17  Ala.  714,  52  Am.  Dec. 
199;  Woodman  v.  Segar,  25  Me.  90;  Valentine  v.  Piper,  22  Pick.  (Mass.)  85, 
33  Am.  Dec.  715;  Landers  v.  Bolton,  26  Cal.  393.  See  "Evidence,"  Dec.  Dig. 
{Key-No.)  §  375;  Cent.  Dig.  §§  1591-1606. 


§§    214-215)  RULES    RELATING    TO    EVIDENCE  487 

Simple  Contracts 

In  proving  a  simple  contract,  whether  in  writing  or  aot,  parol  evi- 
dence is  always  necessary*to  shdw  that  the  party  sued  is  the  party 
who  made  the  contract  and  is  bound  by  it.  In  no  other  way  could 
this  be  shown. 

Oral  evidence  must  of  course  supplement  the  writing  where  the 
writing  only  constitutes  a  part  of  the  contract.  For  instance,  if  a 
person  writes  another  that  he  will  give  the  latter  a  certain  sum  for 
an  article,  and  tells  him  to  ship  it  if  he  accepts  the  offer,  parol  evi- 
dence of  the  shipment  would  be  necessary  to  prove  conclusion  of 
the  contract.  And  so,  if  a  person  puts  the  terms  of  an  agreement 
into  a  written  offer  which  the  other  party  accepts  by  word  of 
mouth,  or  if,  where  no  writing  is  necessar}'-,  he  puts  part  of  the 
terms  into  writing,  and  arranges  the  rest  by  parol  with  the  other 
party,  oral  evidence  must  be  given  in  both  cases  to  show  that  the 
contract  was  concluded  upon  those  terms  by  the  acceptance  of  the 
other  party." 

If  the  contract  is  signed  by  an  attesting  witness,  it  has  been  said 
that  "so  long  as  the  evidence  of  the  subscribing  witness  can  be 
produced,  it  is  the  best — the  primary  and  only — evidence  of  execu- 
tion." » 

So,  also,  where  the  evidence  of  a  contract  consists  of  several 
documents  which  do  not  on  their  face  show  their  connection  with 
each  other,  parol  evidence  is  admissible  to  show  their  connec- 
tion,^" except  in  the  case  of  contracts  which  the  statute  of  frauds 
requires  to  be  expressed  in  writing.^^ 

There  are  circumstances,  such  as  the  loss  or  inaccessibility  of 
the  written  contract,  in  which  parol  evidence  of  the  contents  of 
a  document  is  allowed  to  be  given,  but  this  is  a  part  of  the  gen- 
eral law  of  evidence, 

8  Harris  v.  Eiekett,  4  Hurl.  &  N.  1.  See  "Evidence,''  Dec.  Dig.  (Key-No.)  § 
417;  Cent.  Dig.  §§  1874-1S99. 

9  RICHMOND  &  D.  R.  CO.  v.  JONES,  92  Ala.  218,  9  South.  276,  Throck- 
morton Cas.  Contracts,  337,  per  Coleman,  J.  See  "Evidence,"  Dec.  Dig.  (Key- 
No.)  §  37//;  Cent.  Dig.  §§  1583-1612. 

10  Edwards  v.  Insurance  Soc,  1  Q.  B.  Div.  503 ;  Bergin  v.  Williams,  138 
Mass.  544 ;  Barney  v.  Forbes,  118  N.  Y.  580,  23  N.  E.  890 ;  Blake  v.  Coleman, 
22  Wis.  415,  99  Am.  Dec.  53;  Beer  v.  Aultman-Taylor  Co.,  32  Minn.  90,  19 
N  W.  3S8;  Myers  v.  Munson,  65  Iowa,  423,  21  N.  W.  759;  Colby  v.  Dearborn, 
59  N.  H.  326.  See  "Evidence,"  Dec.  Dig.  (Key-No.)  §  4I6;  Cent.  Dig.  §§  1903- 
1905. 

"  Ante,  p.  109. 


488  INTERPRETATION  OF  CONTRACT  (Ch.  10 


SAME— EVIDENCE  AS  TO  FACT  OF  AGREEMENT  ^» 

216,  A   document  having   been  proved,   parol  evidence  is   admis- 
sible to  show  that  it  is  not  in  fact  a  valid  agreement. 

Thus  far  we  have  dealt  with  the  mode  of  bringing  a  document 
purporting  to  be  an  agreement,  or  part  of  an  agreement,  before 
the  court.  Parol  evidence  is  always  admissible  to  show  that  the 
document  is  not  in  fact  a  valid  agreement.  It  may  be  shown, 
for  instance,  that  incapacity  of  one  of  the  parties,  want  of  gen- 
uine consent  because  of  mistake,  fraud,  etc.,^'  or  illegality  of 
object,^*  made  the  agreement  of  the  parties  unreal,  or  such  as 
the  law  forbids  to  be  carried  out.  In  case  of  a  simple  contract, 
it  may  be  shown,  where  the  promise  only  appears  in  writing,  that 
no  consideration  was  given  for  the  promise.^''     In  case  of  a  deed, 

"  Following  substantially  Anson,   Cent.    (4th   Ed.)   241-243. 

IS  Grand  Tower  &  C.  G.  R.  Co.  v.  Walton,  150  111.  428,  37  N.  E.  920;  Ewing 
V.  Wilson,  132  Ind.  223,  31  N.  E.  65,  19  L.  R.  A.  767;  Cooper  v.  Finke,  38 
Minn.  2,  35  N.  W.  469 ;  Anderson  v.  Walter,  34  Mich.  113 ;  Wanner  v.  Landis, 
137  Pa.  61,  20  Atl.  9."30 ;  Universal  Fashion  Co.  v.  Skinner,  64  Hun,  293,  19 
N.  Y.  Supp.  62 ;  Kranich  v.  Sherwood,  92  INIich.  397,  52  N.  W.  741 ;  Scroggin 
V.  Wood,  87  Iowa,  497,  54  N.  W.  437;  Hicks  v.  Stevens,  121  111.  186,  11  N. 
E.  241;  Marston  v.  Insurance  Co.,  89  Me.  266,  36  Atl.  389,  56  Am.  St  Rep. 
412;  ante,  p.  244.  See  "Evidence,"  Dec.  Dig.  (Key-No.)  §§  4^8-437;  Cent.  Dig. 
§§  1913-2020. 

1*  Allen  V.  Hawks,  13  Pick.  (Mass.)  79;  Friend  v.  Miller,  52  Kan.  139,  34 
Pac.  397,  39  Am.  St  Rep.  340;  Buft'eudeau  v.  Brooks,  28  Cal.  642;  Beadles 
V.  McElrath,  85  Ky.  230,  3  S.  W.  152;  Totten  v.  U.  S.,  92  U.  S.  105,  23  L. 
Ed.  605;  New  England  Mortg.  Security  Co.  v.  Gay  (C.  C.)  33  Fed.  &36;  Lewis 
V.  Willoughby,  43  Minn.  307,  45  N.  W.  439;  Benicia  Agricultural  Works  v. 
Estes,  3  Cal.  Uurep.  855,  32  Pac.  938;  ante,  p.  314.  See  ''Evidence,"  -Dec.  Dig. 
(Key-No.)  §§  438-437;  Cent.  Dig.  §§  1990-2020. 

15  As  to  the  conclusiveness  of  the  recital  of  consideration  in  a  written  con- 
tract or  conveyance,  there  has  been  a  great  deal  of  conflict.  The  New  York 
court  held  in  a  leading  case  that  the  consideration  clause  in  a  conveyance 
is  only  prima  facie  evidence  of  a  consideration,  except  for  the  purpose  of 
giving  effect  to  the  operative  words  of  the  conveyance,  and  that  to  that  end 
alone  is  it  conclusive.  The  rule,  it  seems,  applies  to  all  written  contracts, 
and  is  the  prevailing  doctrine  in  this  country.  McCrea  v.  Purmort,  16  Wend. 
460,  30  Am.  Dec.  103.  See  Bolles  v.  Sachs,  37  Minn.  315,  33  N.  W.  862; 
Goodspeed  v.  Fuller,  46  Me.  141,  71  Am.  Dec.  572;  Rhine  v.  Ellen,  36  Cal. 
362;  Miller  v.  Edgerton,  38  Kan.  36,  15  Pac.  894;  Nichols,  Shepard  &  Co. 
v.  Burch,  128  Ind.  324,  27  N.  E.  737 ;  Barbee  v.  Barbee,  108  N.  C.  581,  13  S. 
E.  215;  Id.,  109  N.  C.  299,  13  S.  E.  792;  Mobile  Sav.  Bank  v.  McDonnell, 
89  Ala.  434,  8  South.  137,  9  L.  R.  A.  645,  18  Am.  St  Rep.  137;  Macomb  v. 
Wilkinson,  83  Mich.  486,  47  N.  W.  336;  Halpin  v.  Stone,  78  Wis.  183,  47 
N.  W.  177;  Louisville,  St  L.  &  T.  R.  Co.  v.  Neafus,  93  Ky.  53,  18  S.  W. 
1030;  HaU  v.  Solomon,  61  Conn.  476,  23  Atl.  876,  29  Am.  St  Rep.  218;  Silvers 


§    216)  RULES    RELATING    TO    EVIDENCE  489 

want  of  consideration  cannot  ordinarily  be  shov/n,  because  its 
validity  does  not  depend  on  consideration,  but  on  its  form;  but, 
where  fraud  or  undue  influence  is  alleged  against  the  validity 
of  the  deed,  the  absence  or  inadequacy  of  consideration  may  be 
shown  in  corroboration  of  other  evidence  tending  to  sustain  the 
allegation. 

Apart  from  such  circumstances  as  these,  it  is  permissible  to 
prove  a  parol  condition  suspending  the  operation  of  the  contract ; 
and  this  applies  both  to  deeds  and  simple  contracts.  A  deed, 
for  instance,  may  be  shown  to  have  been  signed,  or  to  have  been 
delivered  to  a  third  person  subject  to  the  happening  of  an  event 
or  the  doing  of  an  act.  In  the  latter  case,  until  the  event  hap- 
pens, or  the  act  is  done,  the  deed  remains  an  escrow,  and  the 
terms  upon  which  it  was  delivered  may  be  proved  by  extrinsic 
evidence;  but,  as  we,  have  seen,  this  cannot  be  where  the  deed 
is  delivered  to  the  other  party  himself,^®  • 

So,  also,  with  simple  contracts  in  writing.  Evidence  may  be 
given  to  the  effect  that  a  document  purporting  to  be  a  contract 
is  not  so  in  fact.  ^It  may  be  dependent  upon  a  condition  not  ex- 
pressed in  the  document,  so  that,  until  the  condition  happens,  the 
parties  agree  that  the  written  contract  is  to  remain  inoperative. 
In  a  case  involving  this  point,  the  law  was  stated  as  follows: 
"The  production  of  a  paper  purporting  to  be  an  agreement  by 
a  party,  with  his  signature  attached,  affords  a  strong  presump- 
tion that  it  is  his  written  agreement;  and  if,  in  fact,  he  did  sign 
the  paper  animo  contrahendi,  the  terms  contained  in  it  are  con- 
clusive, and  cannot  be  varied  by  parol  evidence.  But  in  the 
present  case  the  defense  begins  one  step  earlier.  The  parties 
met  and  expressly  stated  to  each  other  that  though  for  convenience 
they  would  then  sign  the  memorandum  of  the  terms,  yet  they 
were  not  to  sign  it  as  an  agreement  until  Abernethie  was  con- 
sulted. I  grant  the  risk  that  such  a  defense  may  be  set  up  with- 
out ground,  *  ♦  *  but,  if  it  be  proved  that  in  fact  tlje  paper 
was  signed  with  the  express  intention  that  it  should  not  be  an 
agreement,  the  other  party  cannot  fix  it  as  an  agreement  upon 

V.  Potters,  48  N.  J.  Eq.  539,  22  Atl.  584;  Hill  v.  ^Tiidden,  158  Mass.  2G7, 
33  X.  E.  02G;  Bristol  Sav.  Bank  v.  Stiger,  8U  Iowa,  344,  53  N.  W.  2G5.  See 
"Evidence,"  Dec.  Dig.    (Key-No.)   §§  J,S3-Ji37 ;  Cent.  Dig.  §§  1990-2020. 

i«  Ante,  p.  07;  Richards  v.  Day,  63  Hun,  G35,  18  N.  Y.  Supp.  733;  Haworth 
V.  Norris,  28  Fla.  763,  10  South.  18;  Gregory  v.  LitUojohii,  25  Neb.  368,  41 
N.  W.  253;  note  19,  infra.  Proof  that  parties  who  si^'iiod  a  bond  did  so 
on  condition  that  other  persons  named  therein  as  sureties  would  also  sign 
it  Is  competent  to  show  that  it  was  never  completely  executed.  State  v. 
Wallis,  57  Ark.  64,  20  S.  W.  811.  -See  "Evidence,"  Dec.  Dig.  (Key-No.)  ^^ 
1,20,  Uh'  Cent.  Dig.  §§  2728,  1795,  ISOO,  180 Ji,  1815,  1929-19', J,. 


490  INTERPRETATION  OF  CONTRACT  (Cll.  10 

those  so  signing.  The  distinction  in  point  of  law  is  that  evidence 
to  vary  the  terms  of  an  agreement  in  writing  is  not  admissible, 
but  evidence  to  show  that  there  is  not  an  agreement  at  all  is 
admissible."  ^' 


SAME— EVIDENCE  AS  TO  TERMS  OF  CONTRACT^' 

217.  Parol  evidence  as  to  the  terms  of  a  contract  wTiich  appears 
to  be  complete  in  writing  is  inadmissible,  except 

(a)  To  prove  terms  which  are  supplementary  or  collateral  to 

so  much  of  the  agreement  as  is  in  writing. 

(b)  To  explain  terms  of  the  contract  which  need  explanation. 

(c)  To  introduce  a  custom  or  usage  into  the  contract. 

(d)  In  the  application  by  courts  of  equity  of  their  peculiar  rem- 

edies in  cases  of  mistake. 

Where  a  contract  is  reduced  to  writing,  it  is  presumed  to 
embody  the  final  and  entire  agreement  of  the  parties;  and  parol 
evidence  is  accordingly  inadmissible  to  contradirt,  add  to,  or  other- 
wise vary,  the  written  contract.^*     So,  where  a  written  contract 

17  Pym  V.  Campbell,  6  El.  &  Bl.  370.  And  see  McFarland  v.  Sikes,  54  Conn. 
250,  7  Atl.  408,  1  Am.  St.  Rep.  Ill;  Wilson  v.  Powers,  131  Mass.  539;  Ware 
V.  Allen,  128  U.  S.  590,  9  Sup.  Ct  174,  32  L.  Ed.  5G3 ;  Juilliard  v.  Chaffee, 
92  N.  Y.  529;  Reynolds  v.  Robinson,  110  N.  Y.  654,  18  N.  E.  127;  Westman 
V.  Krumweide,  30  Minn.  313,  15  N.  W.  355 ;  Lipscomb  v.  Lipscomb,  32  S.  C. 
243,  10  S.  E.  929;  Solenberger  v.  Gilbert's  Adm'r,  86  Va.  778,  11  S.  E.  789; 
Humphreys  v.  Railroad  Co.,  88  Va.  431,  13  S.  E.  985;  Gibbons  v.  Ellis,  83 
Wis.  434,  53  N.  W.  701 ;  Blewitt  v.  Boorum,  142  N.  Y.  357,  37  N.  E.  119,  40 
Am.  St.  Rep.  600 ;  Burns  &  Smith  Lumber  Co.  v.  Doyle,  71  Conn.  742,  43  Atl. 
483,  71  Am.  St.  Rep.  235 ;  Hillyard  v.  Hewitt,  61  Or.  58,  120  Pac.  750.  This 
rule,  in  the  absence  of  fraud,  does  not  permit  parol  evidence  of  an  agreement 
contemporaneous  with  a  written  contract,  such  as  a  note  or  bond,  which  has 
been  completely  executed  and  finally  delivered,  so  as  to  take  effect,  that  the 
obligee  or  promisee  would  not  enforcer  the  contract,  or  that  the  liability  of 
the  obligor  or  promisor  should  be  dependent  upon  a  condition  not  expressed 
in  the  writing.  See  note  18,  infra.  See  "Evidence,"  Dec.  Dig.  (Eey-Ko.)  § 
397;  Cent.  Dig.  §§  1756-1765. 

18  Anson,  Cont.  (4th  Ed.)  243-251. 

19  SMITH  V.  WILLIAMS,  5  N.  C.  426,  4  Am.  Dec.  564,  Throckmorton  Cas. 
Contracts,  339 ;  Burnes  v.  Scott,  117  U.  S.  582,  6  Sup.  Ct.  865,  29  L.  Ed.  991 ; 
Pierce  v.  Tidwell,  81  Ala.  299,  2  South.  15 ;  Atlee  v.  Bartholomew,  69  Wis.  43, 
33  N.  W.  110,  5  Am.  St  Rep.  103 ;  Bofinger  v.  Tuyes,  120  U.  S.  198,  7  Sup.  Ct. 
529,  30  L.  Ed.  649;  De  Long  v.  Lee,  73  Iowa,  53,  34  N.  W.  613;  Gilbert  v. 
Plow  Co.,  119  U.  S.  491,  7  Sup.  Ct.  305,  30  L.  Ed.  476;  Williams  v.  Kent, 
67  Md.  350,  10  Atl.  228 ;  Conant  v.  Bank,  121  Ind.  323,  22  N.  E.  250 ;  Mer- 
chants' &  Farmers'  Nat.  Bank  v.  McElwee,  104  N.  C.  305,  10  S.  E.  295; 
Harrow  Spring  Co.  v.  Harrow  Co.,  90  Mich.  147,  51  N.  W.  197,  30  Am.  SL  Rep. 


§    217)  RULES    RELATING    TO    EVIDENCE  491 

has  been  fully  executed  and  delivered,  parol  evidence  is  not 
admissible  of  an  understanding  that  it  should  not  be  operative  ac- 
cording to  its  terms,  or  that  the  liability  of  the  promisor,  abso- 
lute on  the  face  of  the  instrument,  was  intended  to  be  condi- 
tional.^'' And  parol  testimony  is  also  inadmissible  to  contradict 
an  implied  term  of  a  contract,  or  to  alter  its  legal  effect.^^  Not- 
withstanding the  strictness,  however,  with  which  the  parol  evi- 
dence rule  is  enforced  by  the  courts,  parol  testimony  affecting 
the  terms  of  a  written  contract  is  admissible  when  the  effect  of 
such  testimony  is  not  to  vary,  but  to  explain,  the  contract,  or 
to  add  a  term  to  a  contract  in  writing  which  is  evidently  not 
intended  to  cover  the  entire  agreement  between  the  parties,^^ 

421;  Gasper  v.  Heimbach,  53  Minn.  414,  55  N.  W,  559;  Viollette  v.  Rice, 
173  Mass.  82,  53  N.  E.  144;  Clarli  v.  Mallory,  185  III.  227,  56  N.  E.  1099; 
Smith  V.  Bank,  89  Fed.  832,  32  C.  C.  A.  368.  The  rule  excluding  parol  evi- 
dence is  confined  to  the  parties  to  the  contract,  or  their  privies;  and  it  does 
not  apply  as  between  a  party  and  a  stranger.  Clapp  v.  Banliing  Co.,  50  Ohio 
St.  528,  35  N.  E.  308;  Highstone  v.  Burdette,  61  Mich.  54,  27  N.  W.  852; 
Bruce  v.  Lumber  Co.,  87  Va.  381,  13  S.  E.  153,  24  Am.  St.  Rep.  657;  Fonda 
V.  Burton,  63  Vt.  355,  22  Atl.  594 ;  Grove  v.  Rentch,  26  Md.  367 ;  Clerihew  v. 
Banli,  50  Minn.  538,  52  N.  W.  967;  First  Nat.  Bank  v.  Dunn,  55  N.  J.  Law, 
404,  27  Atl.  90S ;  Marriner  v.  Dennison,  78  Cal.  202,  20  Pac.  386.  Where  part 
of  the  contract  is  in  writing  and  part  is  oral,  that  part  which  has  been  re- 
duced to  writing  may  not  be  contradicted  by  parol  evidence.  English  v.  New 
Orleans  &  N.  E.  R.  Co.,  100  Miss.  809,  57  South.  223.  See  "Evidence,"  Dec. 
Dig.  (Key-No.)  §  S97;  Cent.  Dig.  §§  1756-1765. 

2  0  McCormick  Harvesting  Mach.  Co.  v.  Wilson,  39  Minn.  467,  40  N.  W.  571; 
Marquis  v.  Lauretson,  76  Iowa,  23,  40  N.  W.  73;  Meekins  v.  Newberry,  101 
N.  C.  17,  7  S.  E.  655 ;  Thompson  v.  McKee,  5  Dak.  172,  37  N.  W.  367 ;  Coap- 
stick  V,  Bosworth,  121  Ind.  6,  22  N.  E.  772 ;  Dexter  v.  Ohlander,  93  Ala.  441, 
9  South.  361 ;  Engelhorn  v.  Reitlinger,  122  N.  Y.  76,  25  N.  E.  297,  9  L.  R.  A. 
548;  Ziegler  v.  McFarland,  147  Pa.  607,  23  Atl.  1045;  Osborne  v.  Taylor,  58 
Conn.  439,  20  Atl.  605;  Harrison  v.  Morrison,  39  Minn.  319,  40  N.  W.  66; 
Burns  &  Smith  Lumber  Co.  v.  Doyle,  71  Conn.  742,  43  Atl.  4S3,  71  Am.  St. 
Rep.  235.  Cf.  Clinch  Valley  Coal  &  Iron  Co.  v.  Willing,  ISO  Pa.  165,  36  Atl. 
737,  57  Am,  St.  Rep.  626.  In  the  absence  of  fraud,  parol  evidence  is  not 
admissible  to  show  that  the  obligee,  contemporaneously  with  the  execution 
of  a  bond,  promised  not  to  enforce  it  as  against  one  of  the  parties.  Towner 
V.  Lucas'  Ex'r,  13  Grat.  (Va.)  705;  Bamett  v.  Barnett,  83  Va.  504,  2  S.  E. 
733;  Yeager  v.  Yeager  (Pa.)  8  Atl.  579.  See  "Evidence,"  Dec.  Dig,  {Key-No.) 
§  J,20;  Cent.  Dig.  §§  1728,  1795,  1800,  180 It,  1815,  1821,  1929-19U- 

21  Barry  v.  Ransom,  12  N.  Y.  464;  In  re  Clairfield  Lumber  Co.  (D.  C.)  194 
Fed.  181,  194;  Van  Winkle  &  Co.  v.  Crowell,  146  U.  S.  42,  13  Sup.  Ct.  18,  36 
L.  Ed.  880.  See  "Evidence,"  Dec.  Dig.  (Key-No.)  §§  423,  Ul ;  Cent.  Dig.  §§ 
1957-1965,  2030-20J,7. 

^2  See  infra,  notes  23,  24.  Where  a  parol  contract  is  executed,  the  subse 
fjuent  reduction  of  the  contract  to  writing  does  not  prevent  one  of  the  parlies 
from  proving  by  parol  a  term  of  the  original  contract  not  Included  in  the 
writing.  Smith  v.  Hunt,  50  Ind.  App.  592,  98  N.  E.  841.  See  "Evidence," 
Dec.  Dig.  (Key-No.)  §  417;  Cent.  Dig.  §§  1874-1899. 


492  INTERPRETATION  OF  CONTRACT  (Ch,  10 

Proof  of  Supplementary  or  Collateral  Terms 

If  the  parties  to  a  contract  have  not  put  all  its  terms  in  writ- 
ing, parol  evidence  of  the  supplementary  terms  is  admissible,  not 
to  vary,  but  to  complete,  the  written  contract.^^  Thus,  where  a 
written  contract  for  the  sale  of  goods  mentions  the  price,  but  is 
silent  as  to  the  terms  of  payment,  the  terms  may  be  shown 
by  parol  evidence.^*  And  a  subsequent  agreement  changing  the 
terms  of  a  written  contract  may  be  shown  by  parol  evidence. ^^    ' 

Again,  evidence  may  be  given  of  an  oral  agreement  collateral 
to  the  written  contract,  subjecting  it  to  a  term  unexpressed  in 
its  contents;  but  such  a  term  cannot  be  enforced  if  it  is  contrary 
to  the  tenor  of  the  writing.-®  "No  doubt,  as  a  rule  of  law,  if 
parties  enter  into  negotiations  affecting  the  terms  of  a  bargain, 
and  afterwards  reduce  it  into  writing,  verbal  evidence  will  not 
be  admitted  to  introduce  additional  terms  into  the ,  agreement ; 
but,  nevertheless,  what  is  called  a  'collateral  agreement,'  where 
the  parties  have  entered  into  an  agreement  for  a  lease,  or  for  any 
other  deed  under  seal,  may  be  made  in  consideration  of  one  of 
the  parties  executing  that  deed,  unless,  of  course,  the  stipulation 

2  3  Jervis  v.  Berridge,  8  Ch.  App.  351;  Potter  v.  Hopkins,  25  Wend.  (N.  Y.) 
417;  Batterman  v.  Pierce,  3  Hill  (N.  Y.)  171;  Grierson  v.  Mason,  60  N.  Y, 
394;  Holt  v.  Pie,  120  Pa.  425,.  14  Atl.  3S9;  Lyon  v.  Lenon,  106  Ind.  567,  7 
N.  E.  311;  Raynor  v.  Drew,  72  Cal.  307,  13  Pac.  866;  Reynolds  v.  Hassam, 
56  Vt.  449;  Coates  v.  Sangston,  5  Md.  121;  Walter  A.  Wood  Macli.  Co.  v. 
Gaertner,  55  Mich.  453,  21  N.  W.  885;  Lash  v.  Parlin,  78  Mo.  391;  Bretto 
V.  Levine,  50  Minn.  168,  52  N.  W.  525;  Mobile  &  M.  Ry.  Co.  v.  Jurey,  111 
U.  S.  584,  4  Sup.  Ct.  566,  28  L.  Ed.  527;  Peabody  v.  Bement,  79  INIich.  47,  44 
N.  W.  416;  Bank  v.  Cooper,  137  U.  S.  473,  11  Sup.  Ct.  160,  34  L.  Ed.  759. 
See  ''Evidence,"  Dec.  Dig.  (Key-No.)  §  4-'tl;  Cent.  Dig.  §§  1723-1763. 

24  Paul  V.  Owings,  32  Md.  402;  Magill  v.  Stoddard,  70  Wis.  75,  35  N,  W. 
346.  Where  a  contract  specifies  no  time,  parol  evidence  of  a  contemporaneous 
agreement  as  to  time  of  payment  is  admissible.  Horner  v.  Horner,  145  Pa. 
258,  23  Atl.  441 ;  Sivers  v.  Sivers,  97  Cal.  518,  32  Pac.  571.  See  "Emdence," 
Dec.  Dig.  (Key-No.)  §  Ul;  Cent.  Dig.  §§  1723-1763;  "Sales,"  Cent.  Dig.  §  721. 

25Coe  V.  Hobby,  72  N.  Y.  141,  147,  28  Am.  Rep.  120;  Kennebec  Co.  v. 
Augusta  Ins.  &  B.  Co.,  6  Gray  (Mass.)  204;  Quigley  v.  De  Haas,  98  Pa.  202; 
Smith  V.  Lilley,  17  R.  I.  119,  20  Atl.  227;  Stallings  v.  Gottschalk,  77  Md. 
429,  26  Atl.  524;  Bannon  v.  Aultman,  80  Wis.  307,  49  N.  W.  907,  27  Am.  St. 
Rep.  37;  Worrell  v,  Forsyth,  141  111.  22,  30  N.  K  073.  See  "Evidence,"  Dec. 
Dig.  (Key-No.)  §  U.5 ;  Cent.  Dig.  §§  2052-2065. 

2  6Lindley  v.  Lacy,  17  C.  B.  (N,  S.)  578;  Ayer  v.  Manufacturing  Co.,  147 
Mass.  46,  16  N.  E.  754;  Chapin  v.  Dobson,  78  N.  Y.  74,  34  Am.  Rep.  512; 
Bonney  v.  Morrill,  57  Me.  368;  Walker  v.  France,  112  Pa.  203,  5  Atl.  208; 
Roberts  v,  Bonaparte,  73  Md.  191,  20  Atl.  918,  10  L.  R.  A.  689;  Palmer  v. 
Roath,  86  Mich.  602,  49  N.  W.  590;  Durkin  v.  Cobleigh,  156  Mass.  108,  30 
N.  K.  474,  17  L.  R,  A.  270,  32  Am.  St.  Rep.  436;  Phoenix  Pub.  Co.  v.  Clothing 
Co.,  54  Minn.  205,  55  N.  W.  912;  Keen  v.  Beckman,  66  Iowa,  672,  24  N.  W. 
270.    See  "Evidence,"  Dec.  Dig.  (Key-No.)  §  l',2;  Cent.  Dig.  §§  1S74-1897. 


§    217)  EULES   RELATING   TO    EVIDENCE  493 

contradicts  the  terms  of  the  deed  itself.  I  quite  agree  that  an 
agreement  of  that  kind  is  to  be  rather  closely  watched,  and  that 
we  should  not  admit  it  without  seeing  clearly  that  it  is  substan- 
tially proved."  ^^ 

Explanation  of  Terms 

Parol  evidence  is  also  admissible,  where  it  is  necessary  in  order 
to  explain  the  terms  of  a  written  contract.  Explanation  ot  terms 
may  merely  amount  to  evidence  of  the  identity  of  the  parties  to 
the  contract,  as  where  two  persons  have  the  same  name,  or  where 
an  agent  has  contracted  in  his  own  name,  but  on  behalf  of  a 
principal  whose  name  or  whose  existence  he  failed  to  disclose. ^^ 
Or,  again,  it  may  be  a  description  of  the  subject-matter  of  a  con- 
tract that  needs  explanation.  Where,  for  instance,  persons  agreed 
to  buy  from  another  certain  wool,  which  was  described  as  "your 
wool,"  and  the  right  of  the  seller  to  introduce  evidence  of  the 
quality  and  quantity  of  the  wool  was  disputed,  the  evidence  was 
held  admissible.*" 

Again,  it  may  be  necessary  to  explain  some  word  or  clause  in 
the  writing,  not  describing  the  subject-matter  of  the  contract,  but 

2  7  Erskine  v.  Adeane,  8  Ch.  App.  756.  See  "Evidence,"  Dec.  Dig.  (Kcij-No  ) 
i  Ul;  Cent.  Dig.  §§  1723-1763. 

28  Wake  V.  Harrop,  6  Hurl.  &  N.  768 ;  Darrow  v.  Produce  Co.  (C.  C.)  67 
Fed.  463;  Mobberly  v.  Mobberly,  60  Md.  376;  Hartzell  v.  Crumb,  90  Mo.  629, 
3  S.  W.  59;  Simpson  v.  Dix,  131  Mass.  179;  Martin  v.  Smitti,  65  Miss.  1,  3 
South.  33 ;  Wakefield  v.  Brown,  38  Minn.  361,  37  N.  W.  788,  8  Am.  St.  Rep. 
671 ;  Barkley  v.  Tarrant,  20  S.  C.  574,  47  Am.  Rep.  853 ;  Rumbough  v.  Southern 
Imp.  Co.,  106  N.  C.  461,  11  S.  E.  528;  Northern  Nat.  Bank  v.  Lewis,  78  Wis. 
475,  47  N.  W.  834;  Bartlett  v.  Remington,  59  N.  II.  364;  Haskell  v.  Tukesburv, 
92  Me.  551,  43  Atl.  500,  69  Am.  St.  Rep.  529 ;  First  Nat.  Bank  v.  North,  2  S. 
D.  480,  51  N.  W.  96.  The  writing,  however,  cannot  be  contradicted  as  to  the 
parties.  Parol  evidence,  for  instance,  is  not  admissible  to  show  that  an  order 
reading  "Ship  to  me,"  and  signed  "G.  G.  Bander,"  was  intended  to  be  the 
order  of  the  firm  of  "George  G.  Bander  &  Co."  Osgood  v.  Bander,  82  Iowa. 
171,  47  N.  W.  1001.  An  agent  who  contracts  in  his  own  name  cannot,  to  escape 
Uability,  show  that  he  intended  to  bind  his  principal  and  not  himself.  Hig- 
gins  V.  Senior,  8  Mees.  &  W.  834 ;  Dexter  v.  Ohlander,  93  Ala.  441,  9  South. 
361 ;  Cream  City  Glass  Co.  v,  Friedlander,  84  Wis.  53,  54  N.  W.  28,  21  L.  R.  A. 
135,  36  Am.  St.  Rep.  895;  Brigham  v.  Herrick,  173  Mass.  460,  53  N.  E.  900; 
Tiffany,  Ag.  234,  356.  See  "Evidence,"  Dec.  Dig.  (Key-No.)  §  4^8;  Cent.  Dig 
g§  2066-20S2. 

2  8  Macdonald  v,  Longbottom,  1  El.  &  El.  977.  And  see  Bulklev  v.  Devine 
127  111.  406,  20  N.  E.  16,  3  L.  R.  A.  330;  Clark  v.  Coflin  Co.,  125  Ind.  277^ 
25  N.  E.  288;  Thompson  v.  Stewart,  60  Iowa,  223,  14  N.  W.  247;  Thornell 
V.  City  of  Brockton,  141  Mass.  151,  6  N.  E.  74 ;  Busby  v.  Bu.sh,  79  Tex.  656, 
15  S.  W.  638;  Thacker  v.  Howell  (Ky.)  26  S.  W.  719;  Rapley  v.  Klugh,  40 
S.  C.  134,  18  S.  E.  680;  Merriam  v.  United  States,  107  U.  S.  437,  2  Sup.' Ct. 
536,  27  L.  Ed.  531 ;  Reed  v.  Insurance  Co..  95  U.  S.  23,  24  L.  Ed.  348 ;  New 
England   Dressed   M.  &  W.   Co.  v.   Standard   W.  Co.,   165  Mass.  328,  43  N, 


494  INTERPRETATION  OF  CONTRACT  (Ch.  10 

describing  the  amount  and  character  of  the  responsibility  which 
one  of  the  parties  takes  upon  himself  as  to  the  conditions  of  the 
contract.  Where,  for  instance,  a  person  accepted  an  order  upon 
him  by  one  who  had  contracted  to  do  certain  work  for  him,  "to 
be  paid  out  of  the  last  installment,"  evidence  was  admitted  to 
show  that  the  meaning  of  the  words  quoted  was  that  the  order 
was  only  to  be  paid  out  of  the  last  payment  to  a  certain  person 
provided  for  in  the  contract,  and  that,  if  that  person  did  not 
fulfill  his  contract  so  that  the  last  payment  would  become  due 
and  payable,  there  should  be  no  liability  on  the  order.^"  So,  also, 
where  a  vessel  is  warranted  "seaworthy,"  a  house  promised  to 
be  kept  "in  tenantable  repair,"  or  a  thing  undertaken  to  be  done 
in  a  "reasonable  manner,"  parol  evidence  is  admissible  to  show 
the  application  of  these  phrases  to  the  subject-matter  of  the 
contract,  so  as  to  ascertain  the  intention  of  the  parties.  In  every 
policy  of  marine  insurance  there  is  an  implied  warranty  by  the 
assured  that  the  vessel  is  "seaworthy."  In  an  action  on  such  a 
policy,  evidence  was  held  admissible  to  show  that  the  word  "sea- 
worthy" was  understood  in  a  modified  sense  with  reference  to  the 
particular  vessel  and  voyage. ^^ 

Cases  of  the  sort  we  have  just  described  are  called  cases  of  latent 
ambiguity,  as  distinguished  from  patent  ambiguities,  where  words 
are  omitted  or  contradict  one  another.  In  the  latter  cases  explan- 
atory evidence  is  not  admissible.  Thus,  where  a  bill  of  exchange 
was  drawn  for  one  sum  in  words,  and  the  figures  at  the  top  were 
for  a  larger  amount,  evidence  was  not  admitted  to  show  that 
the  bill  was  intended  to  be  drawn  for  the  latter  amount.*^ 

E.  112,  52  Am.  St  Rep.  516;  Brown  v.  Markland,  16  Utah,  360,  52  Pac.  597, 
07  Am.  St.  Rep.  629.  See  "Evidence,"  Dec.  Dig.  (Key-No.)  §  460;  Cent.  Dig. 
§§  2115-2128. 

30  Proctor  v.  Hartigan,  143  Mass.  462,  9  N.  E.  841.  And  see  Manchester 
Paper  Co.  v.  Moore,  104  N.  Y.  680,  10  N.  E.  861;  Wickes  Bros.  v.  Electric 
Light  Co.,  70  Mich  322,  38  N.  W.  299 ;  Rhodes  v.  Wilson,  12  Colo.  65,  20  Pac. 
746;  Roberts  v.  Bonaparte,  73  Md.  191,  20  Atl.  918,  10  L.  R.  A.  689;  Clay 
V.  Field,  138  U.  S.  464,  11  Sup.  Ct.  419,  34  L.  Ed.  1044;  Macdonald  v.  Dana, 
154  Mass.  152,  27  N.  E.  993;  Fawkner  v.  Wall-Paper  Co.  (Iowa)  49  N.  W.  1003; 
Hurd  V.  Bovee,  54  Hun,  635,  7  N.  Y.  Supp.  241;  Id.,  134  N.  Y.  595,  31  N. 
E.  624;  Durr  v.  Chase,  161  Mass.  40,  36  N.  E.  741;  Halladay  v.  Hess,  147 
111.  588,  35  N.  E.  380.  See  "Evidence;'  Dec.  Dig.  {Key-No.)  §  463;  Cent.  Dig. 
§§  2140-2148. 

31  Burges  v.  Wickham,  3  Best  &  S.  669.  See  Payne  v.  Haine,  16  Mees.  & 
W.  541.  See  "Evidence;'  Dec.  Dig.  (Key-No.)  §§  456,  457;  Cent.  Dig.  §§  2104- 
2106. 

32  Sanderson  v.  Piper,  5  Bing.  N.  C.  425.  See  "Evidence"  Dec.  Dig.  (Key- 
No.)  §§  451,  452;  Cent.  Dig.  §§  2085-2101. 


§    217)  RULES    RELATING   TO    EVIDENCE  495 

Evidence  of  Custom  and  Usage 

Evidence  of  the  custom  or  usage  of  a  trade,  or  of  a  particular 
locality,  is  admissible,  though  it  may  add  a  term  to  a  contract, 
or  may  attach  a  special,  and  sometimes  unnatural,  meaning  to  one 
of  the  terms  expressed. '' 

Same — To  add  a  Term  to  the  Contract 

As  an  instance  of  a  usage  which  annexes  a  term  to  a  contract, 
we  may  cite  the  warranty  of  seaworthiness  which  by  custom  is 
always  implied  in  a  contract  of  marine  insurance,  though  not 
specially  mentioned.  So,  also,  in  a  case  of  agricultural  customs, 
a  usage  that  the  tenant,  quitting  his  farm  at  Christmas,  was 
entitled  to  reap  grain  sown  the  preceding  autumn,  was  held  in 
England  to  be  annexed  to  his  lease,  though  the  lease  was  under 
seal,  and  was  silent  on  the  subject.^*  And  in  a  New  York  case 
it  was  held  that,  where  a  contract  for  excavating  city  lots  was 
silent  as  to  whom  the  sand  and  dirt  taken  out  should  belong  to, 
a  well-known  custom  by  which  it  belonged  to  the  excavator,  and 
not  to  the  owner  of  the  lots,  might  be  shown  as  evidence  of  the 
contract.^^ 

The  principle  on  which  usages  are  so  annexed  has  been  said 
to  rest  on  the  "presumption  that  in  such  transactions  the  parties 
did  not  mean  to  express  in  writing  the  whole  of  the  contract  by 
which  they  intended  to  be  bound,  but  to  contract  with  reference 
to  those  known  usages."  *' 

Same — To  Explain  Terms 

Proof  of  custom  and  usage  is  also  admissible  to  explain  words 
and  phrases  in  contracts,  where  they  are  commercial  terms,  or 
otherwise   subject  to   known   customs.     The   principle   on   which 

83  Wilcox  V.  Wood,  9  Wend.  (N.  Y.)  346;  Rindskoff  v.  Barrett,  14  Iowa, 
101;  Potter  v.  Morland,  3  Cush.  (Mass.)  384;  Sampson  v.  Gazzan,  6  Port 
(Ala.)  123,  30  Am.  Dec.  578;  Thompson  v,  Brannin,  94  Ky.  490,  21  S.  W. 
1057;  Swift  Iron  Works  v.  Dewey,  37  Ohio  St.  242;  Steamboat  Albatross 
V.  Wayne,  16  Ohio,  513;  Newhall  v.  Appleton,  114  N.  Y.  140,  21  N.  E.  105, 
3  L.  R.  A.  859 ;  Patterson  v.  Crowther,  70  Md.  124,  16  Atl.  531 ;  Brown  Chem- 
ical Co.  V.  Atkinson,  91  N.  C.  389 ;  McCullough  v.  Hellwig,  66  Md.  269,  7  Atl. 
455 ;  Breen  v.  Moran,  51  Minn.  52.5,  53  N.  W.  755 ;  Donovan  v.  Standard  Oil 
Co.,  155  N.  Y.  112,  49  N.  E.  678.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key- 
No.)  §  16;  Cent.  Dig.  §§  27,  28;  "Evidence,"  Cent.  Dig.  §§  19J,5-1952. 

34  Wigglesworth  v.  DoUison,  1  Smith,  Lead.  Cas.  594.  See  "Customs  and 
Usages,"  Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §§  27,  2S;  "Evidence,"  Cent. 
Dig.  §§  191,5-1952. 

85  COOPER  V.  KANE,  19  Wend.  (N.  Y.)  386,  32  Am.  Dec.  512,  Throckmorton 
Cas.  Contracts,  345.  And  see  Hewitt  v.  Lumber  Co.,  77  Wis.  548,  46  N.  W. 
822.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §§ 
27,  28;  "Evidence,"  Cent.  Dig.  §§  19^/5-1952. 

8«  Hutton  V.  Warren,  1  Mees.  &  W.  466 ;  Appleman  v.  Fisher,  34  Md.  540. 


496  INTERPRETATION  OF  CONTRACT  (Ch.  10 

such  explanation  is  admitted  has  been  said  to  be  "that  words 
perfectly  unambiguous  in  their  ordinary  meaning  are  used  by  the 
contractors  in  a  different  sense  from  that.  *  *  *  In  such  cases 
the  evidence  neither  adds  to,  nor  qualifies,  nor  contradicts  the 
written  contract;  it  only  ascertains  it  by  expounding  the  lan- 
guage." ^^  As  illustrating  this  rule,  in  commercial  contracts  in 
the  case  of  charter  parties  in  which  the  days  allowed  for  unloading 
the  ship  are  to  commence  "on  arrival"  at  the  port  of  discharge, 
evidence  may  be  given  to  show  what  is  commonly  understood 
to  be  the  port ;  for  some  ports  are  of  large  area,  and,  by  custom 
"arrival"  is  understood  to  mean  arriving  at  a  particular  spot  in  the 
port.^^  Another  illustration  is  a  case  in  which  a  covenant  by  the 
lessee  of  a  rabbit  warren  that  he  would  leave  10,000  rabbits  on 
the  warren  was  explained  by  evidence  of  a  usage  of  the  locality 
to  mean  12,000,  because  1,000  meant  1,200.3'* 

Closely  connected  with  this  principle  is  the  admissibility  of 
expert  testimony  to  explain  terms  of  art  or  technical  phrases  when 
used  in  documents.*" 

Same — Requisites  of  Custom  or  Usage 

In  order  that  a  custom  or  usage  may  afTect  a  contract,  either  by 
adding  or  explaining  terms,  it  must  meet  certain  requirements. 

See  ''Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  16;  Cent.  Dig.  §§  27,  28; 
''Evidence,"  Cent.  Dig.  §§  1945-1952. 

37  Brown  v.  Byrne,  3  El.  &  Bl.  703,  716.  And  see  Atkinson  v.  Truesdell, 
127  N.  Y.  230,  27  N.  E.  844;  Myers  v.  Tibbals,  72  Cal.  278,  13  Pac.  695; 
Susquehanna  Fertilizer  Co.  v.  White,  66  Md.  444,  7  Atl.  802,  59  Am.  Rep. 
186;  Packard  v.  Van  Schoick,  58  111.  79;  Long  v.  Davidson,  101  N.  C.  170, 
7  S.  E.  758 ;  Evans  v.  Manufacturing  Co.,  118  Mo.  548,  24  S.  W.  175 ;  Calla- 
han V,  Stanley,  57  Cal.  476;  Wood  v.  Allen,  ail  Iowa,  97,  82  N.  W.  451; 
Seymour  v.  Armstrong,  62  Kan.  720,  64  Pac.  612.  See  "Customs  and  Usages," 
Dec.  Dig.  (Key-No.)  §  15;  Cent.  Dig.  §§  S0-S3;  "Evidence,"  Cent.  Dig.  §§  i9Ji5- 
1952. 

38  Nordon  Steam  Co.  v,  Dempsey,  1  C.  P.  Div.  654.  See  "Customs  and 
Usages,"  Dec.  Dig.  (Key-No.)  §  15;  Cent.  Dig.  §§  30-33;  "Evidence,"  Cent. 
Dig.  §§  1945-1952. 

3  9  Smith  V.  Wilson,  3  Barn.  &  Adol.  728.  And  see  Soutier  v.  Kellerman,  18 
Mo.  509 ;  McCuIlough  v.  Ashbridge,  155  Pa.  166,  26  Atl.  10 ;  Hinton  v.  Locke, 
5  Hill  (N.  Y.)  437.  But  see  Sweeney  v.  Thomason,  9  Lea  (Tenn.)  359,  42 
Am.  Eep.  676;  Wilkinson  v.  Williamson,  76  Ala.  163;  Barlow  v.  Lambert, 
28  Ala.  704,  65  Am.  Dec.  374;  post,  p.  498.  See  "Customs  and  Usages,"  Dec. 
Dig.  (Key-No.)  §  15;  Cent.  Dig.  §§  30-33;  "Evidence,"  Cent.  Dig.  §§  1945-1952. 

40  Hill  V.  Evans,  31  L.  J.  Ch.  457;  Dana  v.  Fielder,  12  N.  Y.  40,  62  Am. 
Dec.  130;  Fruin  v.  Railway  Co.,  89  Mo.  397,  14  S.  W.  557;  Gauch  v.  Insur- 
ance Co.,  88  111.  251,  30  Am.  Rep.  554;  Jones  v.  Anderson,  82  Ala.  302,  2 
South.  911;  Welsh  v.  Huckestein,  152  Pa.  27,  25  Atl.  138;  City  of  Elgin  v. 
Joslyn,  136  111.  525,  26  N.  E.  1090.  See  "Customs  and  Usages,"  Dec.  Dig. 
(Key-No.)  §  15;  Cent.  Dig.  §§  30-33;  "Evidenc-e,"  Cent.  Dig.  §§  1945-1952. 


§    217)  RULES    RELATING   TO    EVIDENCE  497 

In  the  first  place,  the  usage  must  have  been  established  at  the 
time  the  contract  was  made.  It  need  not  have  existed  for  any  par- 
ticular length  of  time,  but  it  must  have  been  recognized  as  an  exist- 
ing rule,  not  only  up  to  and  at  the  date  of  the  contract,  but  for 
a  sufficient  time  before  the  contract  to  have  become  generally 
known. ^^  This  rule  that  the  usage  must  have  been  established  in- 
cludes several  other  rules  which  have  sometimes  been  stated  separ- 
ately, namely,  that  it  must  have  been  uniform  and  certain,*^  con- 
tinued,*^ and  peaceable  and  acquiesced  in.** 

Another  rule  which  is  included  in  this  is  that  a  usage  must  be 
general.  If  it  is  not  so,  it  cannot  be  regarded  as  obligatory  on  the 
parties  unless  it  is  expressly  shown  that  they  knew  of  it,  and  con- 
tracted with  reference  to  it.*'  A  particular  bank,  for  instance, 
could  not  alone,  by  adopting  a  rule  governing  its  own  business, 
thereby  establish  a  usage  which  would  be  obligator}^  on  all  per- 
sons dealing  with  it.***  It  might  be  established,  however,  by  all 
the  banks  in  a  certain  city,  or  all  the  tradesmen  in  a  particular  line 
of  business.     Though  confined  to  a  single  city,  it  would  be  suffi- 


41  Adams  v.  Otterback,  15  How.  539,  14  L.  Ed.  805;  Wilson  v.  Bauman, 
80  111.  493;  Packard  v.  Van  Schoick,  58  111.  79;  Ulmer  v.  Farnsworth,  80  Me. 
500,  15  Atl.  65;  Hall  t.  Storrs,  7  Wis.  253;  Ambler  v.  Phillips,  132  Pa.  167, 
19  Atl.  71;  Thompson  v.  Hamilton,  12  Pick.  (Mass.)  425,  23  Am.  Dec.  619; 
Smith  V.  Wright,  1  Caines  (N.  Y.)  43,  2  Am.  Dec.  162;  Cooper  v.  Berry,  21 
Ga.  526,  6  Am.  Dec.  468;  Buford  v.  Tucker,  44  Ala.  89.  See  "Customs  and 
Usages,"  Dec.  Dig.  (Kev-No.)  §  4;  Cent.  Dig.  §  S. 

42  Foley  V.  Mason,  6  Md.  37;  Hibbard  v.  Peek,  75  Wis.  619,  44  N.  W.  041; 
Vos  V.  Robinson,  9  Johns.  (N.  Y.)  192;  Oelricks  v.  Ford,  23  How.  49,  16  L. 
Ed.  534;  Minis  v.  Nelson  (C.  C.)  43  Fed.  777;  Illinois  Masons'  Benevolent 
Soc.  V.  Baldwin,  86  111.  479;  Smith  v.  Hess,  S3  Iowa,  238.  48  N.  W.  1030; 
Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  (Mass.)  417;  The  Harbinger  (D.  C.) 
50  Fed.  941;  Desha  v.  Holland,  12  Ala.  513,  46  Am.  Dec.  261;  Wallace  v. 
Morgan,  23  Ind.  359.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key-lslo.)  §  6; 
Cent.  Dig.  §  5. 

48  Johnson  v.  Stoddard,  100  Mass.  306 ;  Michigan  Cent.  R.  Co.  v.  Coleman, 
28  Mich.  440;  Brent  v.  Cook,  12 'B.  Mon.  (Ky.)  207;  Walker  v.  Barron,  6 
Minn.  508  (Gil.  353).  See  ''Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  4; 
Cent.  Dig.  §  3. 

4  4  Dixon  V.  Dunham,  14  111.  324;  Strong  v.  Railroad  Co.,  15  Mich.  206,  93 
Am.  Dec.  184 ;  McMasters  v.  Railroad  Co.,  69  Pa.  374,  8  Am.  Rep.  264.  See 
"Customs  and  Usages,"  Dec.  Dig.   {Key-No.)   §  2;  Cait.  Dig.  §§  3-6. 

45  I'atterson  v.  Crowther,  70  Md.  124,  IG  Atl.  531;  Miller  v.  Moore,  83  Ga. 
684,  10  S.  E.  300,  6  L.  R.  A.  374,  20  Am.  St.  Rep.  329 ;  Lamb  v.  Henderson, 
63  Mich.  302,  29  N.  W.  732.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key-No.) 
i  5;  Cent.  Dig.  §  4. 

4  6  Adams  v.  Otterback,  15  How.  539,  14  L.  Ed.  805.  See  "Customs  and 
Usages,"  Dee.  Dig.  (Key-No.)  §  5;  Cent.  Dig.  f  4. 

Clark  Cont.(3u  IOd.) — 32 


498  INTERPRETATION  OF  CONTRACT  (Cll.  10 

cienti^  general  to  be  obligatory  on  all  persons  in  that  city.*^  Even 
here,  however,  it  would  scarcely  be  binding  on  persons  living  at  a 
distance,  unless  it  were  shown  affirmatively  that  they  knew  of  it.** 

It  is  a  general  rule  that  the  usage  must  have  been  known  to  the 
parties;*^  but,  if  a  usage  is  established  and  is  general,  it  is  pre- 
sumed to  have  been  known  to  them,  and  is  obligatory  without  af- 
firmative proof  of  knowledge,  and  even  in  case  of  ignorance/"  If 
it  is  not  a  general  usage,  then  it  must  be  affirmatively  shown  that 
the  parties  had  knowledge  of  the  usage,  and  contracted  with  refer- 
ence to  it."^  In  order  that  a  usage  may  be  binding,  it  must  have 
been  actually  or  presumptively  known  to  both  of  the  parties,  and 
not  merely  to  the  party  who  is  sought  to  be  charged  by  it.  Want 
of  knowledge  of  a  local  usage  on  the  part  of  one  of  them  shows 
that  it  could  not  have  entered  into  the  contract.^^ 

It  is  also  essential  that  a  usage  shall  be  consistent  with  rules  of 
law,  for  "a  universal  usage  cannot  be  set  up  against  the  general 

4TRenner  v.  Bank,  9  Wheat,  587,  6  L.  Ed.  166;  Mills  v.  Bank,  11  Wheat. 
431,  6  L.  Ed.  512.  See  ''Customs  and  Usages,"  Dec.  Dig.  {Key-No.)  §  5;  Cent 
Dig.  §  4. 

48  German  American  Ins.  Co.  v.  Commercial  Fire  Ins.  Co.,  95  Ala.  469,  11 
South.  117,  16  L.  R.  A.  291 ;  Chateaugay  Ore  &  Iron  Co.  v.  Blake,  144*  U. 
S.  476,  12  Sup.  Ct.  731,  36  L.  Ed.  510;  Simon  v.  Johnson,  101  Ala.  868,  13 
South.  491.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  5-  Cent 
Dig.  §  4. 

4  9  Bliven  v.  Scre\r  Co.,  23  How.  420,  16  L.  Ed.  510;  Irwin  v.  Williar,  110 
U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225;  Dawson  v.  Kittle,  4  Hill  (N.'  Y.) 
107;  Martin  v.  Hall,  26  Mo.  386;  Martin  v.  Maynard,  16  N.  H.  165;  Murray 
V.  Brooks,  41  Iowa,  45;  Sugart  v.  Mays,  54  Ga.  554;  Janney  v.  Boyd,  30 
Minn.  319,  15  N.  W.  308;  Scott  v.  Whitney,  41  Wis.  504;  Dodge  v.  Favor, 
15  Gray  (Mass.)  82;  Sawtelle  v.  Drew,  122  Mass.  228;  Marshall  v.  Perry', 
67  Me.  78.  See  ''Customs  and  Usages,"  Dec.  Dig.  {Key-No.)  §  12;  Cent  Dig 
§§  23,  2Jt. 

60  Walls  V.  Bailey,  49  N.  Y.  464,  10  Am.  Rep.  407;  Bailey  v.  Bensley,  87 
111.  556;  Blake  v.  Stump,  73  Md.  160,  20  Atl.  788,  10  L.  R.  A.  103;  Carter 
V.  Coal  Co.,  77  Pa.  286;  Ford  v.  Tirrell,  9  Gray  (Mass.)  401,  69  Am.  Dec. 
297;  Howard  v.  Walker,  92  Tenn.  452,  21  S.  W.  897;  Austrian  v.  Springer, 
94  Mich.  343,  54  N.  W.  50,  34  Am.  St.  Rep.  350 ;  Hostetter  v.  Park,  137  U.  s! 
30,  11  Sup.  Ct  1,  34  L.  Ed.  568.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key- 
No.)  §  12;  Cent.  Dig.  §§  23,  2k. 

61  Chateaugay  Ore  &  Iron  Co.  v.  Blake,  144  TJ.  S.  476,  12  Sup.  Ct.  731, 
36  L.  Ed.  510;  Sleght  v.  Hartshorne,  2  Johns.  (N.  Y.)  532;  Allen  v.  Bank[ 
120  U.  S.  20,  7  Sup.  Ct.  4G0,  30  L.  Ed.  573;  Penuell  v.  Transportation  Co., 
94  Mich.  247,  53  N.  W.  1049 ;  Brunnell  v.  Sawmill  Co.,  86  Wis.  587,  57  N.  W. 
364.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  12;  Cent.  Dig  §§ 
23,  21t. 

6  2Nonotuck  Silk  Co.  v.  Fair,  112  Mass.  354;  Chateaugay  Ore  &  Iron  Co. 
V.  Blake,  144  U.  S.  476,  12  Sup.  Ct  731,  36  L.  Ed.  510.  -See  "Customs  and 
Usages,"  Dec.  Dig.   (Key-No.)  §  12;  Cent.  Dig.  §§  23,  2^. 


§    217)  RULES   RELATING   TO    EVIDENCE  49J> 

law."  ^^  If  it  is  inconsistent  with  any  rule  of  the  common  law,'* 
or  with  any  statute, '°  or  is  contrary  to  public  policy,^'  it  cannot  be 
recognized.  A  usage,  however,  is  not  contrary  to  rules  of  law  in 
this  sense,  merely  because  it  makes  the  law  applicable  to  the  partic- 
ular contract  different  from  what  it  would  be  if  the  usage  were  not 
imported  into  the  contract.  This  is  generally  the  object  and  the 
natural  effect  of  proving  a  usage. 

A  usage  cannot  be  set  up  to  affect  a  contract  if  it  is  unreasonable 
or  oppressive. °''  A  usage  of  agents,  for  instance,  in  collecting  drafts 
for  absent  parties,  to  surrender  them  to  the  drawees  at  maturity, 
and,  upon  mere  confidence  in  the  good  credit  of  the  drawees,  to 
take  in  exchange  their  checks  upon  banks,  was  held  ineffectual  be- 
cause unreasonable.^* 

Finally,  the  usage  must  not  be  inconsistent  with  the  terms  of  the 
contract,  for  it  is  optional  with  the  parties  to  exclude  the  usage  if 

08  Meyer  v.  Dremer,  11  C.  B.  (N.  S.)  646.  See  "Customs  and  Usages,"  Dec. 
Dig.    (Key-No.)  §  8;  Cent.  Dig.  §§  8-10. 

54  First  Nat.  Bank  v.  Taliaferro,  72  Md.  164,  19  Atl.  3G4;  Dickinson  v. 
Gay,  7  Allen  (Mass.)  29,  83  Am.  Dee.  65G;  Hedden  v.  Roberts,  134  Mass.  38, 
45  Am.  Rep.  276;  Tucker  v.  Smith,  68  Tex.  473,  3  S.  W.  671;  Inglebright 
V.  Hammond,  19  Ohio,  337,  53  Am.  Dec.  430;  Globe  Milling  Co.  v.  Elevator 
Co.,  44  aiinn.  153,  46  N.  W.  306 ;  Marshall  v.  Perry,  67  Me.  78.  See  "Customs 
and  Usages,"  Dec.  Dig.  {Key-No.)  §  8;  Cent.  Dig.  §§  8-10. 

6  B  Colgate  V.  Pennsylvania  Co.,  102  N,  Y.  120,  6  N.  E.  114;  Many  v.  Iron 
Co.,  9  Paige  (N.  Y.)  188;  Cayzer  v.  Taylor,  10  Gray  (Mass.)  274,  69  Am.  Dec. 
317;  Cutter  v.  Howe,  122  Mass.  541 ;  Mansfield  v.  Inhabitants,  15  Gray  (Mass.) 
149;  Godcharles  v.  Wigeman,  113  Pa.  431,  6  Atl.  354;  McCrary  v.  McFarland, 
93  Ind.  466.  Proof  of  usage  cannot  give  a  different  meaning  to  terms  than, 
that  given  by  statute.  Green  v.  Moffett,  22  Mo.  529 ;  Rogers  v.  Allen,  47  N.  H. 
529.  Nor  can  proof  of  usage  change  the  statutory  duties  of  an  officer.  Scrib- 
uer  V.  Town  of  Hollis,  48  N.  H.  30;  Delaplaue  v.  Crenshaw,  15  Grat.  (Va.) 
457 ;  Frazier  v.  Warfield,  13  Md.  279.  Nor  can  violation  of  usury  laws  be  jus- 
tified by  usage.  Gore  v.  Le\^^s,  109  N.  C.  539,  13  S.  E.  909;  Dunham  v.  Gould, 
16  Johns.  (N.  Y.)  367,  8  Am.  Dec.  323;  Greene  v.  Tyler,  39  Pa.  361.  See 
"Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  8;  Cent.  Dig.  §§  S-10. 

58  Raisin  v.  Clark,  41  Md.  158,  20  Am.  Rep.  66.  See  "Customs  and  Usages,"^ 
Dec.  Dig.   (Key-No.)   §  8;  Cent.  Dig.  §§  S-10. 

67  Seccomb  v.  Insurance  Co.,  10  Allen  (Mass.)  305;  Blackburn  v.  Mason, 
4  Reports,  297,  68  Law  T.  510;  Minis  v.  Nelson  (C.  C.)  43  Fed.  777;  Central 
R.  Co.  V.  Anderson,  58  Ga.  393 ;  Pennsylvania  Coal  Co.  v.  Sanderson,  94  Pa. 
302,  39  Am.  Rep.  785;  Boardman  v.  Spooner,  13  Allen  (Mass.)  353,  90  Am. 
Dec.  196;  Strong  v.  Railroad  Co.,  15  Mich.  206,  93  Am.  Dec.  184;  Anderson 
V.  Whitaker,  97  Ala.  690,  11  South.  919;  Nolte  v.  Hill,  36  Ohio  St.  186;  Rosen- 
stock  V.  Tormey,  32  Md.  169,  3  Am.  Rep.  125;  Ilaskins  v.  Warren,  115  Mass. 
514;  Merchants'  Ins.  Co.  v.  Prince,  50  Minn.  53,  52  N.  W.  131,  36  Am.  St 
Rep.  626.  See  "Customs  and  Usages,"  Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig. 
§  7. 

68  Whitney  v.  Esson,  99  Mass.  308,  96  Am.  Dec.  762.  See  "Customs  and 
Usages,"  Dec.  Dig.  (Key-No.)  §  7;  Cent.  Dig.  §  7. 


500  INTERPRETATION  OP  CONTRACT  (Ch.  10 

they  think  fit,  and  to  frame  their  contract  so  as  to  be  repugnant  to 
is  operation.'" 

In  Equity 

In  the  application  of  equitable  remedies,  the  granting  or  refusal 
of  specific  performance,  the  reformation  of  documents,  or  their 
rescission  and  cancellation,  extrinsic  evidence  is  much  more  freely 
admitted  than  at  law.  For  instance,  though,  as  we  have  seen,  a 
man  is  ordinarily  bound  by  the  terms  of  an  offer  unequivocally  ex- 
pressed, and  accepted  in  good  faith,  evidence  has  been  admitted  to 
show  that  the  offer  was  made  by  inadvertence.  Thus,  where  a  per- 
son, immediately  after  dispatching  an  oft'er  to  sell  several  plots  of 
land  for  a  round  sum,  discovered  that  by  a  mistake  in  adding  up  the 
prices  of  the  plots  he  had  offered  them  for  less  than  he  intended, 
and  informed  the  other  party  of  the  mistake  without  delay,  but  not 
before  the  latter  had  concluded  the  contract  by  acceptance,  the 
court  allowed  the  mistake  to  be  shown,  and  refused  specific  per- 
formance, leaving  the  person  to  whom  the  offer  was  made  to  such 
remedy  by  way  of  damages  as  he  could  obtain  in  the  common-law 
courts.®* 

Again,  where  a  parol  contract  has  been  reduced  to  writing,  or 
where  a  contract  for  a  sale  or  lease  of  lands  has  been  performed  by 
the  execution  of  a  lease  or  conveyance,  evidence  may  be  admitted  to 
show  that  a  term  of  the  contract  is  not  the  real  agreement  of  the 
parties ;  and  this  is  done  for  two  purposes,  and  under  two  sets  of 
circumstances. 

Where  a  contract  has  been  reduced  to  writing,  or  a  deed  execut- 
ed, in  pursuance  of  a  previous  agreement,  and  the  writing  or  deed, 
owing  to  mutual  mistake,  fails  to  express  the  intention  of  the  par- 
ties, a  court  of  equity  will  rectify  or  reform  the  written  instrument 
in  accordance  with  their  true  intent;  and  this  may  be  done  even 
though  the  parties  cannot  be  placed  in  the  position  they  occupied 

6  9  Blackett  v.  Assurance  Co.,  2  Cromp.  &  J.  244;  Brown  v.  Foster,  113 
Mass.  136,  18  Am.  Rep.  463;  Randolph  v.  Halden,  44  Iowa,  327;  Greenstine 
V.  Borchard,  50  Mich.  434,  15  N.  W.  540,  45  Am.  Rep.  51 ;  Seavey  v.  Shurick, 
110  Ind.  494,  11  N.  E.  597 ;  Wolff  v.  Campbell,  110  Mo.  .114,  19  S.  W.  622 ; 
O'Donohue  v.  Leggett,  134  N.  Y.  40,  31  N.  B.  269;  Baltimore  Baseball  Club 
&  Exhibition  Co.  v.  Pickett,  78  Md.  375,  28  Atl.  279,  22  L.  R.  A.  090,  44  Am. 
St.  Rep.  304 ;  Holloway  v.  McNear,  81  Cal.  154,  22  Pac.  514 ;  Gilbert  v.  Mc- 
Ginnis,  114  111.  28,  28  N.  E.  382 ;  Barnard  v.  Kellogg,  10  Wall.  383,  19  L.  Ed. 
987;  Partridge  v.  Insurance  Co.,  15  Wall.  573,  21  L.  Ed.  229;  Globe  Milling 
Co.  V.  Elevator  Co.,  44  Minn.  153,  46  N.  W.  306;  Menage  v.  Rosenthal,  175 
Mass.  358,  56  N.  E.  579.  See  "Customs  and  Usages,'"  Dec.  Dig.  (Key-No.)  §§ 
H,  11;  Cent.  Dig.  §§  29,  SI 

«o  Webster  v.  Cecil,  30  Beav.  62.  See  McCusker  v.  Spier,  72  Conn.  628,  45 
Atl.  1011.  See  "Specific  Performance,"  Dec.  Dig.  (Key-No.)  §  52;  Cent.  Dig. 
§§  155-159. 


§§    218-220)  RULES   OF   CONSTRUCTION  501 

when  the  contract  was  made.'^  In  such  cases,  extrinsic,  and,  if 
necessary,  parol  evidence  will  be  admited  to  show  the  true  intent  of 
the  parties.  There  must  have  been  a  genuine  agreement;"^  its 
terms  must  have  been  expressed  under  mutual  mistake;®^  and  the 
evidence  must  be  clear  and  convincing. 

Where  the  mistake  was  not  mutual,  extrinsic  evidence  is  only  ad- 
mitted in  certain  cases  which  appear  to  be  regarded  as  having  some- 
thing of  the  character  of  fraud,®*  and  is  admitted  for  the  purpose  of 
offering  to  the  party  seeking  to  profit  by  the  mistake  an  option  of 
abiding  by  a  corrected  contract,  or  having  the  contract  annulled. 
Instances  of  such  cases  are  where  the  mistake  of  one  party  was 
caused  by  the  other,  though  not  with  any  fraudulent  intent,  and  was 
known  to  him  before  his  position  had  been  afifected  by  the  con- 
'tract.®^  In  these  cases  it  is  probable  that  the  court  will  not  reform 
or  correct  the  instrument  unless  the  parties  can  be  placed  in  statu 
quo. 

RULES  OF  CONSTRUCTION 

Thus  far  we  have  dealt  with  the  admissibility  of  evidence  in  rela- 
tion to  contracts  in  writing.  We  now  come  to  deal  with  the  rules 
of  construction  which  govern  the  interpretation  of  the  contract  as 
it  is  proven  to  have  been  made  between  the  parties. 

61  Beaueliarap  v.  Winn.  L.  R.  6  H.  L.  2.32;  Murray  v.  Parker,  19  Beav.  305. 
See  "Evidence,"  Dec.  Dig.  (Key-No.)  §  433;  Cent.  Dip.  §§  1990-2004. 

6  2  MacKensie  v.  Coulson,  L.  R.  8  Eq.  368.  See  "Evidence,"  Dec.  Dig.  (Key- 
No.)  §  433;  Cent.  Dig.  §§  1990-2004. 

63  Fowler  V.  Fowler,  4  De  Gex  &  J.  250 ;  Page  v.  Higglns,  1.50  Mass.  27, 
22  N.  E.  63,  5  L.  R.  A.  152;  Chute  v.  Quincy,  156  Mass.  189,  30  N.  E.  550; 
Purvines  v.  Harrison,  151  111.  219,  37  N.  E.  705;  Green  v.  Stone,  54  N.  J. 
Eq.  387,  34  Atl.  1099,  55  Am.  St.  Rep.  577;  Spurr  v.  Home  Ins.  Co.,  40  Minn. 
424,  42  N.  W.  206 ;  King  v.  Holbrook,  38  Or.  452,  63  Pac.  651 ;  Eaton,  Eq. 
620.     See  "Evidence;'  Dec.  Dig.  {Key-No.)  §  433;  Cent.  Dig.  §§  1990-2004. 

6  4  Equity  has  jurisdiction  to  reform  where  there  is  mistake  on  one  side 
caused  by  fraud  on  the  other.  Fishack  v.  Ball,  34  W.  Va.  644,  12  S.  E.  856; 
Bu.sh  V.  Merriman,  87  Mich.  260,  49  N.  W.  567;  Kyle  v.  Fehley,  81  Wis.  67, 
51  N.  W.  257,  29  Am.  St.  Rep.  866;  Snell  v.  Insurance  Co.,  98  U.  S.  85,  91, 
25  L.  Ed.  52;  Kleinsorge  v.  Rohse,  25  Or.  51,  34  Pac.  874.  See  "Evidence," 
Dec.  Dig.  (Key-No.)  §  433;  Cent.  Dig.  §§  1990-2004. 

6  5  Garrard  v.  Frankel,  30  Beav.  445;  Harris  v.  Pepperell,  L.  R.  5  Eq.  1; 
Moffett,  H.  &  C.  Co.  V.  City  of  Rochester,  178  U.  S.  373,  20  Sup.  Ct.  957,  44 
L.  Ed.  1108.  Cf.  Trenton  Terra  Cotta  Co.  v.  Shingle  Co.  (C.  C.)  SO  Fed.  46. 
Bee  "Evidence;'  Dec.  Dig.   (Key-No.)  f  4SS;  Cent.  Dig.  §§  1990-2004. 


o02  INTERPRETATION  OF  CONTRACT  (Ch.  10 


SAME— QUESTION  FOR  COURT  OR  JURY 

218.  The  question  as  to  whether  or  not  the  parties  have  made  a  par- 
ticular contract  is  usually  for  the  jury,  but  questions  as  to 
the  construction  of  the  contract  are  usually  for  the  court. 

In  accordance  with  the  general  rule  that  the  construction  of  writ- 
ten instruments  is  a  function  of  the  court  rather  than  of  the  jury,  it 
is  ordinarily  for  the  court  to  construe  the  meaning  of  writings  re- 
lied on  to  make  a  contract.®*  And  the  same  rule  applies  to  oral 
contracts  where  there  is  no  dispute  as  to  the  words  used  by  the 
parties.®^  But  all  questions  involving  dispute  as  to  matters  of  fact 
are  for  the  jury.  Whether,  therefore,  the  parties  have  entered  inta 
a  contract,  or  have  used  certain  words,  or  have  included  certain 
terms  are  questions  for  the  jury.®*  So,  where  ambiguous  words  in 
a  contract  are  to  be  construed  by  extrinsic  evidence  or  the  sur- 
rounding circumstances,  the  meaning  of  such  words  becomes  a 
question  for  the  jury.'" 


SAME— GENERAL  RULES 

219.  The  three  general  rules  of  construction  are  that: 

(a)  Words  are  to  be  understood  in  their  plain  and  literal  mean- 

ing, but — 

EXCEPTIONS— (1)  Evidence  of  usage  may  vary  the  usual 
meaning  of  words.  , 

(2)  Technical  words  are  to  be  given  their  technical  meaning. 

(3)  The  rule  is  subject  to  the  following  rules  as  to  giving  ef- 

fect to  the  intention  of  the  parties. 

(b)  An  agreement  should  receive  that  construction  which  will 

best  effectuate  the  intention  of  the  parties. 

6  6  ^tna  Indemnity  Co.  v.  Waters,  110  Md.  673,  73  Atl.  712.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  176;  Cent.  Dig.  §§  767-770;  "Trial,"  Cent.  Dig.  §  326. 

6  7  Embry  v.  Hargadine-McKittrick  Dry  Goods  Co.,  127  Mo.  App.  383,  105 
S.  W.  777.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  176;  Cent.  Dig.  §§  767- 
770;  "Trial,"  Cent.  Dig.  §  326. 

6  8  Embry  v.  Hargadine-McKittrick  Dry  Goods  Co.,  supra;  American  Tow- 
ing &  Lightering  Co.  v.  Baker-WIiitley  Coal  Co.,  Ill  Md.  504,  75  Atl.  341. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  176;  Cent.  Dig.  §§  767-770. 

6  9  French  v.  Fidelity  &  Casualty  Co.  of  New  York,  135  Wis.  259,  115  N.  W. 
869,  17  L.  R.  A.  (N.  S.)  1011;  ^Etna  Indemnity  Co.  v.  Waters,  110  Md.  673,  7a 
Atl.  712  (technical  terms).  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  176;  Cent, 
Dig.  §§  767-770. 


§§    218-220)  RULES   OF   CONSTRUCTION  503 

(c)  The  intention  of  the  parties  is  to  be  collected  from  the  whole 
agreement. 

220.  Subsidiary  to  these  rules  are  the  following,  tending  to  the 
same  end — that  is,  the  effecting  of  the  intention  of  the  par- 
ties: 

(a)  Obvious  mistakes  of  writing  or  grammar,  including  punctua- 

tion, will  be  corrected. 

(b)  The  meaning  of  general  words  will  be  restricted  by  more 

specific  and  particular  descriptions  of  the  subject-matter 
to  which  they  apply. 

(c)  A  contract  susceptible  of  two  meanings  will  be   given  the 

meaning  which  will  render  it  valid. 

(d)  A  contract  will,  if  possible,  be  construed  so  as  to  render  it 

reasonable  rather  than  unreasonable. 

(e)  Words  will  generally  be  construed  most  strongly  against  the 

party  who  used  them. 

(f)  In  case  of  doubt,  weight  will  be  given  the  construction  plac- 

ed upon  the  contract  by  the  parties. 

(g)  Where  there  is  a  conflict  betvv^een  printed  and  written  words, 

the  latter  will  control. 

(1)  The  first  general  rule  is  that  words  are  to  be  understood  in 
their  plain  and  literal  meaning;  and  this  rule  is  followed,  though 
the  consequences  may  not  have  been  in  the  contemplation  of  the 
parties. ^^  The  rule,  however,  is  subject  to  the  qualification  that  a 
particular  custom  or  usage,  which,  as  we  have  seen,  may  be  proved, 
may  vary  the  usual  meaning  of  words;  ^^  and  that  technical  words 
are  to  be  given  their  technical  meaning. ''*     It  is  also  subject  to  the 

70  Hawes  v.  Smith,  12  Me.  429 ;  Bullock  v.  Lumber  Co.,  3  Cal.  Unrep.  609, 
31  Pac.  367 ;  Mansfield  &  S.  City  R.  Co.  v.  Veeder,  17  Ohio,  385 ;  Hall  v.  Bank, 
53  Md.  120;  Taylor  v.  Turley,  33  Md.  50O;  Pillsbury  v.  Locke,  33  N.  H.  96,  60 
Am.  Dec.  711 ;  Holmes  v.  Hall,  8  Mich.  06,  77  Am.  Dec.  444 ;  Stettauer  v.  Ham- 
lin, 97  111.  312;  Bradshaw  v.  Bradbury,  64  Mo.  334;  Willmering  v.  McGaughey, 
30  Iowa,  205,  6  Am.  Rep.  673 ;  Smith  v.  Bank,  171  Mass.  17S,  50  N.  E.  545 ; 
Fitzgerald  v.  Bank,  114  Fed.  474,  52  C.  C.  A.  276;  PLANO  MFG.  CO.  v.  ELr 
LIS,  08  Mich.  101,  35  N.  W.  841,  Throckmorton  Cas.  Contracts,  347.  While 
parties  to  a  contract  are  entitled  to  its  literal  performance,  when  practicable, 
that  does  not  mean  that  courts  and  juries  shall  give  to  the  terms  of  a  con- 
tract, however  clear  and  unmistakable  the  ordinary  significance  of  the  words 
employed,  a  meaning  which,  when  applied  to  the  subject-matter  of  the  con- 
tract, will  render  performance  impossil)le.  Columbus  Const.  Co.  v.  Crane  Co., 
98  Fed.  946,  40  C.  C.  A.  35.  See  "Contracts,"  Dec.  Dig.  (Ecy-Xo.)  §  J52;  Cent. 
Dig.  §§  732,  733,  73S. 

71  Ante,  p.  495. 

7  2  Ante,  p.  495;  Flndley's  Ex'rs  v.  Findley,  11  Grat.  (Va.)  434;  Ellmaker 
y.  Ellmaker,  4  Watts   (Pa.)  89;  Maryland  Coal  Co.  v.  Railroad  Co.,  41   Md. 


504  INTERPRETATION  OF  CONTRACT  (Ch.  10 

rules,  which  we  will  now  explain,  as  to  giving  effect  to  the  inten- 
tion of  the  parties. 

(2,  3)  The  cardinal  or  fundamental  rule  in  the  construction  of 
contracts  is  that  a  contract  should  receive  that  construction  which 
will  best  effectuate  the  intention  of  the  parties/^  This  intention, 
however,  is  not  one  secretly  cherished  by  a  party,  but  is  the  inten- 
tion expressed  in  the  contract.''*  And  it  must  be  collected,  not  from 
detached  parts  of  the  agreement,  but  from  the  whole  agreement.^' 
"Greater  regard  is  to  be  had  to  the  clear  intent  of  the  parties  than 
to  any  particular  words  which  they  may  have  used  in  the  expression 

343;  Eaton  v.  Smith,  20  Pick.  (Mass.)  150;  McAvoy  v.  Long,  13  III.  147; 
Rindskoff  v.  Barrett,  14  Iowa,  101.  "The  burden  of  proof  of  showing  a  special 
or  technical  or  trade  meaning  is  on  him  who  asserts  it."  Parker,  J.,  in  Ameri- 
can Lithographic  Co.  v.  Commercial  Casualty  Ins.  Co.,  81  N.  J.  Law,  271,  80 
Atl.  25.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  152;  Cent.  Dig.  §  753. 

73  PLANO  MFG.  CO.  v.  ELLIS,  68  Mich.  101,  35  N.  W.  841,  Throckmorton 
Cas.  Contracts,  347;  Bell  v.  Jordan,  102  Me.  67,  65  Atl.  759;  Salisbury  v. 
King  (Ky.)  119  S.  W.  100;  Hoffman  y.  Eastern  Wisconsin  Ey.  &  Light  Co.,  134 
Wis.  603,  115  N.  W.  383;  Brown  v.  Beckwith,  60  Fla.  310,  53  South.  542; 
Chicago  Flour  Co.  v.  City  of  Chicago,  243  111.  268,  90  N.  E.  674 ;  ConservaUve 
Realty  Co.  v.  St.  Louis  Brewing  Ass'n,  133  Mo.  App.  261,  113  S.  W.  229  (hold- 
ing that  the  rule  applies  whether  the  ambiguity  is  patent  or  latent).  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  1^7;  Cent.  Dig.  §§  730,  7J,S. 

T4  Embry  v.  Hargardine-McKittrick  Dry  Goods  Co.,  127  Mo.  App.  383,  105 
S.  W.  777.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  U7;  Cent.  Dig.  §§  73o'  7^3 
7  5  PLANO  MFG.  CO.  v.  ELLIS,  68  Mich.  101,  35  N.  W.  841,  Throckmorton 
Cas.  Contracts,  347 ;  Mallan  v.  May,  13  Mees.  &  W.  511.  517 ;  Jackson  v 
Stackhouse,  1  Cow.  (N.  Y.)  122,  13  Am.  Dec.  514;  Gray  v.  Clark.  11  Vt.  .583; 
Heywood  v.  Perrin,  10  Pick.  (Mass.)  228,  20  Am.  Dec!  518;  Field  v.  Leiter] 
lis  111.  17,  6  N.  E.  877;  Lindley  v.  Groff,  37  Minn.  338,  34  N.  W.  26;  Walsh 
V.  Trevanion,  15  Q.  B.  733 ;  Bell  v.  Bruen,  1  How.  169,  11  L.  Ed.  89 ;  Arm- 
strong V.  Granite  Co.,  147  N.  Y.  495,  42  N.  E.  186,  49  Am.  St.  Rep.  .683 ;  Ger- 
man Fire  Ins.  Co.  v.  Roost,  55  Ohio  St  581,  45  N.  E.  1007,  36  L.  R.  A.  236, 
60  Am.  St.  Rep.  711 ;  Sattler  v.  Hallock,  160  N.  Y,  291,  54  N.  E.  667,  46  L.' 
R.  A.  679,  73  Am.  St.  Rep.  686 ;  McLean  v.  Windham  Light  &  Power  Co.,  85 
Vt.  167,  81  Atl.  613;  Warrum  v.  White,  171  Ind.  574,  86  N.  E.  959.  Where 
several  instruments  are  made  as  part  of  one  transaction,  they  will  be  read 
together,  and  each  will  be  construed  with  reference  to  the  other;  and  the 
different  parts  of  one  instrument  will  be  read  together.  Wood  v.  College,  114 
Ind.  320,  16  N.  E.  619 ;  Morss  v.  Salisbury,  48  N.  Y.  636 ;  Thomson  v.  Beal 
(C.  C.)  48  Fed.  614;  Lindley  v.  Groff,  37  Minn.  338.  34  N.  W.  26;  Pensacola 
Gas  Co.  V.  Lotze,  23  Fla.  368,  2  South.  609;  Hagerty  v.  White,  69  Wis.  317, 
34  N.  W.  92;  Sutton  v.  Beckwith,  68  Mich.  303,  36  N.  W.  79,  13  Am.  St  Rep! 
344;  Bailey  v.  Railroad  Co.,  17  Wall.  96,  21  L.  Ed.  611;  Joy  v.  City  of  St 
Louis,  138  U.  S.  1,  11  Sup.  Ct  243,  34  L.  Ed.  &43 ;  Hunt  v.  Livermore,  5  Pick! 
(Mass.)  395;  Pierce  v.  TidwelL  81  Ala.  290,  2  South.  15;  Freer  v.  Lake,  115 
111.  662,  4  N.  E.  512;  Palmer  v.  Palmer,  150  N.  Y.  139.  44  N.  E.  966,  55* Am. 
St  Rep.  053  ;  American  Gas  &  Oil  Min.  Co.  v.  Wood.  90  Me.  516,  38  Atl.  548^ 
43  L.  R.  A.  449.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  1^7;  Cent.  Dig.  §|'. 
750,  7.^5. 


§§   218-220)  RULES   OF   CONSTEUCTION  505 

of  their  intent."  '"  Where  the  intention  clearly  appears  from  the 
words  used,  there  is  no  need  to  go  further,  for  in  such  a  case  the 
words  must  govern ;  or,  as  it  is  sometimes  said,  where  there  is  no 
doubt,  there  is  no  room  for  construction.^^  The  court  will  not  at- 
tempt, under  cover  of  construction,  to  make  a  new  contract  for  the 
parties,  nor  to  reform  a  written  contract  so  as  to  make  it  express 
the  real  intention  of  the  parties,  which,  by  mistake,  is  not  expressed 
in  the  words  thereof.'^*  But,  if  the  meaning  is  not  clear,  the  court 
will  place  itself,  as  nearly  as  may  be,  in  the  position  of  the  parties 
to  the  contract,^^  and  will  consider  the  circumstances  under  which 
the  contract  was  made,  the  subject-matter,  the  relation  of  the  par- 
ties, and  the  object  of  the  agreement,  in  order  to  ascertain  their  in- 
tention ;  and  for  this  purpose,  as  we  have  seen,  parol  evidence  is  ad- 
missible.®° 

T6  Ford  V.  Beach,  11  Q.  B.  852,  866;  Chesapeake  &  O.  Canal  Co.  v.  Hill,  1.5 
Wall.  94,  21  L.  Ed.  64 ;  Hoffman  v.  Insurance  Co.,  32  N.  Y.  405,  88  Am.  Dec. 
337;  Walker  v.  Douglas,  70  111.  445;  Collins  v.  Lavelle,  44  Vt.  230;  First 
Nat.  Bank  v.  Gerke,  68  Md.  449,  13  Atl.  358,  6  Am.  St.  Rep.  453;  Hunter's 
Adm'rs  v.  Miller's  Ex'rs,  6  B.  Men.  (Ky.)  612;  Gage  v.  Tirrell,  9  Allen 
(Mass.)  299;  Ullmann  v.  Railway  Co.,  112  Wis.  1.50,  88  N.  W.  41,  88  Am.  St.* 
Rep.  949;  Wilkie  v.  New  York  Life  Ins.  Co.,  146  N.  C.  513,  60  S.  E.  427; 
Newbem  Banking  &  Trust  Co.  v.  Duffy,  153  N.  C.  62,  68  S.  E.  915  [cit.  Clark 
on  Contracts  (2d  Ed.)  §§  218,  219].  If  it  clearly  appears  that  a  word  was 
used  inadvertently,  or  is  inconsistent  with  the  real  intention,  it  will  be  re- 
iected.  Wells  v.  Tregusan,  2  Salk.  463;  Dollman  v.  King,  4  Bing.  (N.  C.) 
105  :  Buck  V.  Burk,  18  N.  Y.  337 ;  Stockton  v.  Turner,  7  J.  J.  Marsh.  (Ky.) 
192 ;  Hibbard  v.  McKindley,  28  111.  240 ;  Iredell  v.  Barbee,  31  N,  C.  250.  See 
"Contracts"  Dec.  Dig.   {Key-No.)  §  147;   Cent.  Dig.  §§  ISO,  7JfS.  • 

7  7Dwight  V.  Insurance  Co.,  103  N.  Y.  341,  8  N.  E.  654,  57  Am.  Rep.  729; 
Canterberry  v.  Miller,  76  111.  355 ;  Noyes  v.  Nichols,  28  Vt.  159 ;  Williamson 
V.  McClure,  37  Pa.  402;  Armstrong  v.  Granite  Co.,  47  N.  Y.  495,  42  N.  E.  1S6, 
49  Am.  St.  Rep.  683 ;  Clark  v.  Mallory,  185  111.  227,  56  N.  E.  1099 ;  Abraham 
V.  Railroad.  37  Or.  495,  60  Pac.  899,  64  L.  R.  A.  391,  82  Am.  St,  Rep.  779; 
Lambert  Hoisting  Engine  Co.  v.  Paschall,  151  N.  C.  27,  65  S.  E.  523.  See 
"Contracts."  Dec.  Dig.   (Key-No.)   §  1^7;    Cent.  Dig.  §§  730,  743. 

TsZohrlaub  v.  Mengelberg,  144  Wis.  564,  124  N.  W.  247,  128  N.  W.  975; 
Caverly-Gould  Co.  v.  Village  of  Springfield,  S3  Vt.  396,  76  Atl.  39.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  168;    Cent.  Dig.  §  751. 

7  9  Close  V.  Browne,  230  111.  228,  82  N.  E.  629,  13  L.  R.  A.  (N.  S.)  634.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)   §  IG'J;    Cent.  Dig.  §  75.2. 

sozohrlaub  v.  Mengelberg,  144  Wis.  564,  124  N.  W.  247,  128  N.  W.  975; 
PLANO  MFG.  CO.  v.  ELLIS,  08  Mich.  101,  35  N.  W.  841,  Throckmorton  Cas. 
Contracts,  347;  Roberts  v.  Bonaparte,  73  Md.  191,  20  Atl.  918,  10  L.  R.  A. 
6.89,  and  authorities  there  cited.  And  see  Nash  v.  Towne,  5  Wall.  689,  18  L. 
Ed.  .527;  Caperton's  Adm'rs  v.  Caperton,  30  W.  Va.  479,  15  S.  E.  257;  Pen- 
fold  V.  Insurance  Co.,  85  N.  Y.  317,  39  Am.  Rep.  660;  Wilson  v.  Roots,  119 
111.  379,  10  N.  E.  204  ;  Kuecken  v.  Voltz,  110  III.  264 ;  Lacy  v.  Green,  84  Pa. 
514;  Excelsior  Needle  Co.  v.  Smith,  61  Conn.  56.  23  Atl.  693;  Mobile  &  M. 
R.  Co.  V.  Jurey,  111  U.  S.  584,  4  Sup.  Ct  566,  28  L.  Ed.  527;    Gillett  v.  Bank, 


506  INTERPRETATION  OF  CONTRACT  (Ch.  10 

These  rules  seem  to  be  in  conflict  with  the  rule  first  stated. 
Taking  them  together  they  come  substantially  to  this:  that  men 
will  be  taken  to  have  meant  precisely  what  they  have  said,  unless, 
from  the  whole  tenor  of  the  instrument,  a  definite  meaning  can 
be  collected  which  gives  a  broader  interpretation  to  specific  words 
than  their  literal  meaning  would  bear.  The  courts  will  not  make 
an  agreement  for  the  parties,  but  will  ascertain  what  their  agree- 
ment was,  if  not  by  its  general  purport,  then  by  the  literal  meaning 
of  its  words. 

Subsidiary  Rules 

As  subsidiary  to  the  cardinal  rule  of  ascertaining  and  giving 
effect  to  the  intention  of  the  parties,  there  are  a  number  of  sub- 
sidiary rules  which  are  applied  by  the  courts  in  the  construction 
of  contracts.  As  said  in  a  recent  Wisconsin  case,^^  however,  "no 
rule  of  construction  merely  is  a  strict  rule  of  law.  In  applying 
and  enforcing  any  and  every  contract,  especially  when  reduced 
to  writing,  it  is  the  duty  of  the  court  to  ascertain  what  the  par- 
ties really  intended  by  the  words  used  in  the  instrument,  and 
so-called  rules  of  construction  are  but  aids  or  suggestions  resulting 
from  common  experience  to  the  effect  that  people  generally,  in 
arranging  and  using  words,  mean  thus  or  so  thereby." 

(1)  Courts  will  correct  obvious  mistakes  in  writing  and  gram- 
mar.*^   Accordingly,  words  may  be  transposed,  rejected,  or  supplied, 

160  N.  Y.  549,  55  N.  E.  292;  Hull  Coal  &  Coke  Co.  v.  Coke  Co..  113  Fed.  256, 
51  C.  C.  A.  213 ;  McLean  v.  Windham  Light  &  Lumber  Co.,  85  Vt.  167,  81  Atl. 
613.*  Thus,  where  a  policy  of  marine  insurance  excepted  the  time  "while  the 
vessel  is  at  Baker's  Island  loading,"  and  the  vessel  was  lost  while  there,  but 
before  it  had  begun  to  load,  it  was  held,  after  evidence  of  the  dangerous 
character  of  the  place,  that  the  intention  of  the  parties  was  to  except  the 
time  while  the  vessel  was  there  for  the  purpose  of  loading,  and  not  merely 
while  it  was  actually  loading.  Reed  v.  Insurance  Co.,  95  U.  S.  23,  24  L.  Ed. 
348.  Prior  negotiations  between  the  parties  may  be  considered  in  determin- 
ing the  meaning  of  an  ambiguous  contract.  Potthoff  v.  Safety  Armorite  Con- 
duit Co.,  143  App.  Div.  161,  127  N.  Y.  Supp.  994.  See  "Contracts:'  Dec.  Dig. 
(Key-'No.)  §  169;    Cent.  Dig.  §  752. 

81  Per  Dodge,  J.,  in  Hoffmann  v.  Eastern  Wisconsin  Ry.  &  Light  Co.,  134 
Wis.  603,  115  N.  W.  383.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §§  1J,S,  U7 ; 
Cent.  Dig.  §§  723,  7^3. 

82  Wilson  V.  Wilson,  3  H.  L.  Cas.  40,  66;  Watson  v.  Blaine,  12  Serg.  &  R. 
(Pa.)  131,  14  Am.  Dec.  669;  Monmouth  Park  Ass'n  v.  Iron  Works,  55  N.  J. 
Law.  132,  26  Atl.  140,  19  L.  R.  A.  456,  39  Am.  St.  Rep.  626 ;  Atwood  v.  Cobb, 
16  Pick.  (Mass.)  227,  26  Am.  Dec.  657;  Harman  v.  Howe,  27  Grat.  (Va.)  676; 
Caldwell  v.  Layton,  44  Mo.  220;  Knisely  v.  Shenberger,  7  Watts  (Pa.)  193; 
Fowler  v.  Woodward,  26  Minn.  347,  4  N.  W.  231;  Cowles  Electric  Smelting 
&  Aluminum  Co.  v.  Lowrey,  79  Fed.  331,  24  C.  C.  A.  616;  City  of  Garden 
City  V.  Heller,  61  Kan.  767,  60  Pac.  1060;  Newbern  Banking  &  Trust  Co.  v. 
Duffy,  153  N.  C.  62,  68  S.  E.  915  [cit.  Clark  on  Contracts   (2d  Ed.)   §§  218, 


§§    218-220)  EULES   OF   CONSTRUCTION  507 

if  necessary,  to  make  the  meaning  clear.^'  This  rule  includes 
another,  namely,  that  the  punctuation  of  a  document,  though  it 
may  aid  in  determining  the  meaning,  will  not  control  or  change 
a  meaning  which  is  plain  from  a  consideration  of  the  whole  doc- 
ument and  the  circumstances.^* 

(2)  The  court  will  restrict  the  meaning  of  general  words  by 
more  specific  and  particular  descriptions  of  the  subject-matter 
to  which  they  are  to  apply.*" 

(3)  Where  a  particular  word,  or  the  contract  as  a  whole,  is 
susceptible  of  two  meanings,  one  of  which  will  render  the  contract 
valid,  and  the  other  of  which  will  render  it  invalid,  the  former 
will  be  adopted  so  as  to  uphold  the  contract.*^  Thus,  where  a 
document  was  expressed  to  be  given  "in  consideration  of  your 
being  in  advance"  to  a  person,  and  it  was  argued  that  this  showed 
a  past  consideration  which  would  not  support  the  promise,  the 
court  held  that  the  words  "being  in  advance"  might  mean  a  pro- 
spective advance,  and  be  equivalent  to  "in  consideration  of  your 
becoming  in  advance,"  or  "on  condition  of  your  being  in  ad- 
vance." *^  So,  also,  where  a  contract  is  susceptible  of  two  con- 
structions, one  of  which  will  render  it  unlawful  as  being  in  viola- 

219].  The  word  "and"  may  be  read  "or,"  or  vice  versa,  to  prevent  an  absurd 
or  unreasonable  result.  Manson  v.  Dayton,  153  Fed.  258,  82  C.  C.  A.  588. 
See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  io7;    Cent.  Dig.  §  739. 

8  3  Potthoff  V.  Safety  Armorite  Conduit  Co.,  143  App.  Div.  161,  127  N.  T. 
Supp.  994.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  147;  Cent.  Dig.  §§  730, 
7J,3. 

84  White  V.  Smith,  33  Pa.  186,  75  Am.  Dec.  589;  Ewlng  v.  Burnet.  11  Pet. 
41,  9  L.  Ed.  624 ;  English's  Ex'r  v.  McNair's  Adm'rs,  34  Ala.  40 ;  Osborn  v. 
Farwell,  87  111.  89.  29  Am.  Rep.  47;  Holmes  v.  Insurance  Co..  98  Fed.  240, 
39  C.  C.  A.  45,  47  L.  R.  A.  308.  See  Joy  v.  City  of  St  Louis,  138  U.  S.  1,  11 
Sup.  Ct.  243,  251,  34  L.  Ed.  843.  See  "Contracts,"  Dec^  Dig.  (Key-No.)  § 
158;    Cent.  Dig.  §  7JfO. 

85  Phillips  V.  Barber,  5  Barn.  &  Aid.  161 ;  Cullen  v.  Butler,  5  Maule  &  S. 
461;  Stettauer  v.  Hamlin,  97  111.  312;  Dawes  v.  Prentice,  16  Pick.  (Mass.) 
4.35;  Emery  v.  Fowler,  38  Me.  99;  Vaughan  v.  Porter,  16  Vt.  200;  Bock  v. 
Perkins,  139  U,  S.  628,  11  Sup.  Ct  677,  35  L.  Ed.  314 ;  Richmond  Ice  Co.  v. 
Ice  Co.,  99  Va.  239,  37  S.  E.  851.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
156;    Cent.  Dig.  §  737. 

8  8  Olympia  Bottling  Works  v.  Olympia  Brewing  Co.,  56  Or.  87,  107  Pac. 
969.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  156;    Cent.  Dig.  §  737. 

8T  Haigh  V.  Brooks,  10  Adol.  &  E.  320.  And  see  Atwood  v.  Cobb,  16  Pick. 
(Mass.)  227,  20  Am.  Dec.  657;  Anderson  v.  Baughnian,  7  Mich.  69,  74  Am. 
Dec.  099;  Thrall  v.  Newell,  19  Vt  202,  47  Am.  Doc.  082;  Field  v.  Leiter,  118 
111.  17,  6  N.  E.  877 ;  Gano  v.  Aldridge,  27  Ind.  294 ;  Reilly  v.  Chouquette,  18 
Mo.  220;  Hunter  v.  Anthony,  53  N.  C.  38.").  80  Am.  Dec.  333;  Saunders  v. 
Clark,  29  Cal.  209;  Wells  v.  Atkinson,  24  Minn.  101.  -See  "Contracts,"  Dec, 
Dig.  (Key-No.)  §  156;    Cent.  Dig.  §  737. 


508  INTERPRETATION  OF  CONTRACT  (Ch.  10 

tion  of  law  or  contrary  to  public  policy,  that  construction  which 
will  render  it  lawful  will  be  adopted.** 

(4)  If  possible  without  going  contrary  to  the  manifest  intention 
of  the  parties,  a  contract  will  be  so  construed  as  to  render  it  rea- 
sonable rather  than  unreasonable.*®  If  the  terms  of  the  contract 
itself  leave  its  meaning  in  doubt,  "the  court  will  ascribe  to  the^^ 
parties  an  intention  to  enter  into  a  fair  agreement,  andwili  acjiopt 
the  construction  which  makes  the  contract  equitable."  °° 

(5)  "Language  must  be  interpreted  in  the  sense  in  which  the 
promisor  knew,  or  had  reason  to  know,  the  promisee  understood 
it."  " 

(6)  The  courts  will  construe  words  most  strongly  against  the 
party  who  used  them.  Words  in  an  offer,  for  instance,  will  be 
construed  most  strongly  against  the  proposer,  and  words  in  an 
acceptance  most  strongly  against  the  acceptor;  words  in  a  prom- 
issory note  most  strongly  against  the  maker;  words  in  a  policy 
of  insurance  most  strongly  against  the  insurer ;  and  words  in  a 
conveyance,  particularly  of  exception  or  reservation,  most  strongly 
against  the  grantor,®*     The  principle  on  which  this  rule  is  based 

88  Archibald  v.  Thomas,  3  Cow.  (N.  Y.)  2S4;  Ormes  v.  Dauchy,  82  N.  Y. 
443.  37  Am.  Rep.  583  ;  Hobbs  v.  McLean,  117  U.  S.  5G7.  6  Sup.  Ct.  870,  29 
L.  Ed.  940;  United  States  v.  Railroad  Co.,  118  V.  S.  235,  6  Sup.  Ct.  1038, 
30  L.  Ed.  173;  Lorillard  v.  Clyde,  86  N.  Y.  384;  Horton  v.  Rohlff,  69  Neb. 
95,  95  N.  W.  36,  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  156;  Cent.  Dig.  § 
7S7, 

89Atwood  V,  Emery,  1  C,  B,  (N.  S.)  110;  Russell  v.  Allerton,  108  N.  Y. 
288,  15  N.  E.  391 ;  Wilson  v.  Marlow,  66  111.  385 ;  Town  of  Royalton  v.  Turn* 
pike  Co.,  14  Vt.  311;  Bickford  v.  Cooper,  41  Pa.  142;  Gillet  v.  Bank,  160 
N.  Y,  549,  55  N.  E.  292;  Pressed  Steel  Car  Co.  v.  Railway  Co.,  121  Fed.  609, 
57  C,  C.  A.  635.  See  "Contracts"  Dec.  Dig.  {Key-No.)  §  15Ji;  Cent.  Dig.  § 
735. 

90  McLean  v.  Windham  Light  &  Power  Co.,  85  Vt.  167,  81  Atl.  613,  621, 
And  see  Chicago,  B.  &  Q.  R.  Co.  v.  Provolt,  42  Colo.  103,  93  Pac.  1126,  16 
L.  R.  A.  (N.  S.)  587;  Stein  v.  Archibald,  151  Cal.  220,  90  Pac.  536.  See 
"Contracts,"  Dec.  Dig.   {Key-No.)  §  i54;    Cent.  Dig.  §  735, 

91  American  Lithographic  Co.  v.  Commercial  Casualty  Ins.  Co.,  81  N.  J. 
Law,  271,  80  Atl,  25.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  155;  Cent. 
Dig.  §  736. 

9  2  Barney  v,  Newcomb,  9  Cush.  (Mass.)  46;  Noonan  v.  Bradley,  9  Wall, 
394,  19  L.  Ed.  757;  Jackson  v.  Gardner,  8  Johns.  (N.  Y.)  394;  Duryea  v. 
Mayor,  etc.,  62  N.  Y.  592;  Varnum  v.  Thruston,  17  Md.  471;  Richardson  v. 
People,  85  111.  495;  Sharp  v,  Thompson,  100  111.  447,  39  Am.  Rep.  61;  Wa- 
terman  v.  Andrews,  14  R.  I,  589;  Hill  v.  Manufacturing  Co.,  79  Ga,  105,  3 
S.  E.  445 ;  Phoenix  Ins.  Co.  v.  Slaughter,  12  Wall.  404,  20  L.  Ed.  444 ;  Amer- 
ican Surety  Co.  v.  Pauly,  170  U.  S.  160,  18  Sup.  Ct.  503,  42  L.  Ed.  987 ;  Sny- 
der V,  Insurance  Co.,  59  N,  J.  Law,  544,  37  Atl.  1022,  59  Am.  St.  Rep.  625; 
Wilson  V.  Cooper  (C.  C.)  95  Fed.  625;  Bowser  v.  Patrick  (Ky.)  65  S.  W. 
824.    The  rule  does  not  apply  where  it  would  cause  a  penalty  or  forfeiture. 


§§    218-220)  RULES    OF    CONSTRUCTION  509 

has  been  said  to  be  that  a  man  is  responsible  for  ambiguities  in 
his  own  expressions  and  has  no  right  to  induce  another  to  con- 
tract with  him  on  the  supposition  that  his  words  mean  one  thing, 
while  he  hopes  the  court  will  adopt  a  construction  by  which  they 
would  mean  another  thing  more  to  his  advantage.*^  This  rule 
of  construction,  it  is  sometimes  said,  is  the  last  to  be  resorted  to, 
and  is  never  to  be  relied  .on  except  where  other  rules  of  con- 
struction fail."* 

The  liability  of  a  guarantor  or  surety  is  said  to  be  stricti  juris, 
and  is  to  be  determined  by  the  strict  interpretation  of  the  words 
used,  and  cannot  be  extended  by  implication.*"'  Such  contracts 
are  nevertheless  to  be  interpreted  reasonably  and  according  to 
the  intention  of  the  parties.'"     And  if  the  contract  is  fairly  sus- 

A  condition  in  a  bond,  for  instance,  is  construed  most  strongly  against  the 
obligee.  Butler  v.  Wigge,  1  Saund.  65;  Hoffman  v.  Insurance  Co.,  32  N.  Y. 
405,  88  Am.  Dec.  337 ;  Bennehan  v.  Webb,  28  N.  C.  57 ;  Chicago,  B.  &  Q.  R. 
Co.  V.  City  of  Aurora,  99  HI.  205.  But  a  grant  from  the  government  is  con- 
strued most  strongly  against  the  grantee.  Canal  Com'rs  v.  People,  5  Wend. 
(X.  Y.)  423,  459;  2  Bl.  Comm.  347;  Raleigh  &  G.  R.  Co.  v.  Reid,  64  N.  C. 
155;  Mayor,  etc.,  of  Allegheny  v.  Railroad  Co.,  26  Pa.  355;  Hartford  Bridge 
Co.  V.  Ferry  Co.,  29  Conn.  210;  Northwestern  Fertilizing  Co.  v.  Village  of 
Hyde  Park,  70  111.  634;  Mayor,  etc.,  of  City  of  New  York  v.  Railroad  Co., 
97  N.  Y.  275,  281.  It  is  said,  however,  that  this  "rule  of  construction  has 
been  applied  to  gratuitous  grants  made  by  the  sovereign  of  property,  fran- 
chises, and  privileges,  upon  the  solicitation  of  the  grantee,"  but  that  it  does 
not  apply,  "certainly  not  in  its  full  extent,  to  grants  made  for  the  benefit  of 
the  sovereign  upon  adequate  valuable  consideration  paid  to  the  sovereign  for 
the  thing  granted."  Langdon  v.  Mayor,  etc.,  93  N.  Y.  132.  And  see  Propri- 
etors of  Charles  River  Bridge  v.  Proprietors  of  Warren  Bridge,  7  Pick. 
(Mass.)  344,  485;  Garrison  v.  U.  S.,  7  Wall.  688,  19  L.  Ed.  277.  See  "Con- 
tracts," Dec.  Dig.   (Key-No.)  §  155;    Cent.  Dig.  §  736. 

83  Fowkes  V.  Association.  3  B.  &  S.  929;  Gillet  v.  Bank,  IGO  N.  Y.  549,  55 
N.  E.  292.  A  party  must  be  deemed  to  have  assented  to  a  contract  in  the 
sense  in  which  he  knew  the  other  intended  it  to  signify,  if  the  language  is 
capable  of  that  meaning.  Cowles  Electric  Smelting  &  Aluminum  Co.  v.  Low- 
rey,  79  Fed.  331,  24  C.  C.  A.  616.  See,  also,  Leete  v.  Mining  Co.  (C.  C.)  88 
Fed.  957;  Wood  v.  Allen,  111  Iowa,  97,  82  N.  W.  451;  People's  Bldg.  Ass"n 
r.  Klauber,  1  Neb.  (Unof.)  676,  95  N.  W.  1072.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)   §  155;    Cent.  Dig.  §  736. 

8  4  Empire  Rubber  Mfg.  Co.  v.  Morris,  73  N.  J.  Law,  602,  65  Atl.  450.  See 
"Contracts,"  Dec.  Dig.   (Key-No.)  §  155;    Cent.  Dig.  §  736. 

8  5  Douglass  v.  Reynolds,  7  Pet.  125,  8  L.  Ed.  626;  People  v.  Backus,  117 
N.  Y.  196,  22  N.  E.  7.19 ;  Markland  Min.  &  Mfg.  Co.  v.  Kimmel,  87  Ind.  560 ; 
Weir  Plow  Co.  v.  Walmsley,  110  Ind.  242,  11  N.  E.  232;  Hopewell  v.  Mc- 
Grow,  50  Neb.  7S9,  70  N.  W.  397;  Sherman  v.  Mulloy,  174  Mass.  41,  54  N. 
E.  345,  75  Am.  St.  Kep.  280.  See  "Principal  and  Surety,"  Dec.  Dig.  (Key-No.) 
§  59;  Cent.  Dig.  §§  103,  lOSy^- 

80  People  v.  Lee,  104  N.  Y.  441,  10  N.  E.  884;  Powers  v.  Clarke,  127  N. 
Y.  417,  28  N.  E.  402;  Hooper  v.  Hooper,  81  Md.  155,  31  Atl.  508,  48  Am.  St. 


510  INTERPRETATION  OF  CONTRACT  (Ch.  10 

ceptible  of  two  interpretations,  and  the  other  party  has  acted  upon 
the  interpretation  most  favorable  to  his  rights,  it  seems  that  such 
interpretation  will  prevail.®^ 

(7)  Where  the  meaning  of  the  terms  used  is  clear,  the  fact  that 
the  parties  have  themselves,  by  their  subsequent  conduct  or  other- 
wise, placed  an  erroneous  construction  upon  them,  will  not  prevent 
the  court  from  giving  the  true  construction ;  ®*  but,  where  the 
meaning  is  doubtful,  such  construction  by  the  parties  is  of  great 
weight  in  determining  the  true  meaning,  and  in  some  cases  may 
be  controlling.®* 

(8)  Where,  as  in  the  use  of  printed  forms,  a  contract  is  partly 
printed  and  partly  written,  and  there  is  a  conflict  between  the 
printing  and  the  writing,  the  latter  will  control.^  Within  the 
meaning  of  this  rule,  typewritten  portions  are  regarded  in  the* 
same  manner  as  if  written  with  the  pen.^ 

Kep.  496 ;  Northern  Light  Lodge  v.  Kennedy,  7  N.  D.  146,  73  N.  W.  524.  See 
"Principal  and  Surety;'  Dec.  Dig.   (Key-No.)  §  59;  Cent.  Dig.  §§  103,  lOSV^- 

8 T  Lawrence  v.  McCalmont,  2  How.  426,  11  L.  Ed.  326;  Smith  v.  Molleson, 
148  N.  Y.  241,  42  N.  E.  6G0;  London  &  S.  F.  Bauli  v.  Parrott,  125  Cal.  472, 
58  Pac.  164,  73  Am.  St.  Rep.  64.  See  "Principal  and  Surety"  Dec.  Dig. 
(Key-No.)  §  59;  Cent.  Dig.  §§  103,  103V2- 

9  8  Railroad  Co.  v.  Trimble,  10  Wall.  367,  19  L.  Ed.  948;  Holston  Salt  & 
Plaster  Co.  v.  Campbell,  89  Va.  396,  16  S.  E.  274;  Hershey  v.  Luce,  56  Ark. 
320,  19  S.  W.  963,  20  S.  W.  6;  St.  Paul  &  D.  R.  Co.  v.  Blackmar,  44  Minn. 
514,. 47  N.  W.  172;  Citizens'  Fire  Ins.,  Security  &  Land  Co.  v.  Doll,  35  Md. 
89,  6  Am.  Rep.  360;  Russell  v.  Young,  94  Fed.  45,  36  C.  C.  A.  71;  Menage 
V.  Rosenthal,  175  Mass.  358,  56  N.  E.  579;  Myers  v.  Carnahan,  61  W.  Va.  414, 
57  S.  E.  134.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  170;  Cent.  Dig.  §  755. 

»»  French  v.  Pearce,  8  Conn.  439,  21  Am.  Dec.  680;  Topliff  v.  Topliff,  122 
U.  S.  121,  7  Sup.  Ct.  1057,  30  L.  Ed.  1110;  Mitchell  v.  Wedderburn,  68  Md. 
139,  11  Atl.  760;  Hosmer  v.  McDonald,  80  Wis.  54,  49  N.  W.  112;  Leavitt 
V.  Investment  Co.,  4  C.  C.  A.  425,  54  Fed.  439;  People's  Natural  Gas  Co.  v. 
Wire  Co.,  155  Pa.  22,  25  Atl.  749 ;  Hill  v.  City  of  Duluth,  57  Minn.  231,.  58 
N.  W.  992;  People  v.  Murphy,  119  111.  159,  6  N.  E.  488;  District  of  Columbia 
V.  Gallaher,  124  U.  S.  505,  8  Sup.  Ct.  585,  31  L.  Ed.  526;  City  of  Cincinnati 
V.  Coke  Co.,  53  Ohio  St.  278,  41  N.  E.  239;  Childers  v.  Bank,  147  Ind.  430, 
46  N.  E.  825 ;  Hale  v.  Sheehan,  52  Neb.  184,  71  N.  W.  1019 ;  Long-Bell  Lumber 
Co.  V.  Stump,  86  Fed.  574,  30  C.  O.  A.  200.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  nO;  Cent.  Dig.  §  753. 

1  Thomas  v.  Taggart,  209  U.  S.  385,  28  Sup.  Ct.  519,  52  L.  Ed.  845 ;  Clark 
V.  Woodruff,  83  N.  Y.  518 ;  Chadsey  v.  Guion,  97  N.  Y.  333 ;  Thornton  v.  Rail- 
road Co.,  84  Ala.  109,  4  South.  197,  5  Am.  St.  Rep.  337;  Hernandez  v.  Insur- 
ance Co.,  6  Blatchf.  317,  Fed.  Cas.  No.  6,415;  Murray  v.  Pillsbury,  59  Minn. 
85,  60  N.  W.  844;  Breyman  v.  Railroad  Co.  (C.  C.)  85  Fed.  579;  City  of 
Chicago  V.  Weir,  165  111.  582,  46  N.  E.  725 ;  Commonwealth  Title  Ins.  &  Trust 
Co.  V.  Ellis,  192  Pa.  321,  43  Atl.  1034,  73  Am.  St.  Rep.  816.  See,  also,  Sturm 
V.  Baker,  150  U.  S.  312,  14  Sup.  Ct.  99,  37  L.  Ed.  1093.  See  "Contracts,"  Dec. 
Dig.   (Key-No.)  §  163;  Cent.  Dig.  §  7^5. 

2  Ileyn  v.  New  York  Life  Ins.  Co.,  192  N.  Y.  1,  84  N.  E.  725 ;  Sprague  Elec- 


§§    218-220)  RULES    OF    CONSTRUCTION  511 

Terms  Implied — Unexpressed  Intention 

Certain  terms,  though  unexpressed,  are  imported  into  the  con- 
tract by  law  without  proof  that  they  were  intended  by  the  parties. 
Unless  a  contrary  intention  was  expressed,  the  law  conclusively 
presumes  that  they  intended  to  make  them  a  part  of  their  contract. 
"The  unexpressed  obligations  in  these  instances,  which  are  implied 
by  law,  are  those  which  are  inherent  in  the  transaction  according 
to  its  true  nature,  and  may  be  regarded  as  the  unexpressed  inten- 
tion of  the  parties.  *  *  *  It  is  generally  said  that  contracts 
will  be  construed  according  to  the  intention  of  the  parties.  But 
this  means,  not  only  what  they  did  actually  intend,  but  also  what, 
according  to  the  essential  nature  of  the  particular  transaction, 
the  law  considers  that  they  should  have  intended.  No  intention 
can,  however,  be  read  into  a  contract  unless  it  is  thus  a  necessary 
legal  implication.  *  *  *  When  a  particular  kind  of 'contract 
is  made,  it  is  presumed  that  the  parties  intended  to  embody  all 
the  legal  consequences  of  the  act,  whether  they  knew  of  them 
or  not,  unless  it  can  be  seen  from  the  language  they  used  that 
they  intended  to  exclude  some  of  them."  ' 

This  principle  is  illustrated  by  an  ordinary  contract  of  sale.  In 
all  such  contracts,  in  the  absence  of  expression  to  the  contrary, 
it  is  conclusively  presumed  that  the  seller  intended  to  stipulate 
that  he  had  the  title  to  the  proprety  and  the  right  to  sell  it.  These 
implied  stipulations  are  frequently  called  "implied  warranties." 
Though  unexpressed,  they  are  imported  into  the  contract  by  im- 
plication of  law.* 

On  the  other  hand,  however,  "the  law  will  not  make  a  contract 
for  parties  which  they  have  not  made  themselves,  or  imply  agree- 
ments which  have  no  foundation  in  necessity,  and  which  it  can- 
not be  supposed  that  persons  of  ordinary  prudence  would  have 
included  in  the  contract."  * 

trie  Co.  V.  Board  of  Com'rs,  83  Minn.  262,  8G  N.  W.  332.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  163;  Cent.  Dig.  §  74-5. 

8  Brantly,  Cont.  178,  179;  Genet  v.  Canal  Co.,  136  N.  Y.  593,  32  N.  E.  1078, 
19  L.  R.  A.  127;  Rioux  v.  Brick  Co.,  72  Vt.  148,  47  Atl.  406.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  167;  Cent.  Dig.  §  750. 

4  El  Paso  &  S.  W.  R.  Co.  v.  Eichel  &  Weikel  (Tex.  Civ.  App.)  130  S.  W. 
922,  935.     See  "Sales,"  Dec.  Dig.   (Key-No.)   §  266;  Cent.  Dig.  §§  743-759. 

6  Barnes  v.  American  Brake-Beam  Co.,  238  111.  582,  87  N.  E.  291,  294,  per 
CartwTight,  C.  J.  And  see  Caveriy-Gould  Co.  v.  Village  of  SpringHeld,  83 
Vt.  396,  76  Atl.  39.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  16S;  Cent.  Dig. 
§  751. 


513  INTERPRETATION  OF  CONTRACT  (Ch.  10 


SAME— RULES  AS  TO  TIME 

221.  At  common  law,  time  is  always  of  the  essence  of  a  contract; 
but  in  equity  it  is  otherwise,  unless  it  was  intended  by 
the  parties  to  make  time  of  the  essence,  and  their  inten- 
tion is  expressed  or  to  be  implied.  In  the  absence  of  such 
intention,  the  rule  is  that  a  reasonable  time  was  meant. 
In  some  jurisdictions,  by  statute,  the  rule  at  law  is  the 
same  as  in  equity. 

When  the  contract  fixes  no  time  for  performance,  the  contract 
is  to  be  construed  as  allowing  a  reasonable  time.'  What  is  a 
reasonable  time  is  a  question  to  be  determined  in  view  of  all  the 
circumstances  which  may  have  been  supposed  reasonably  to  have 
been  in  contemplation  of  the  parties. '^ 

Where  the  contract  fixes  a  time  'for  performance,  the  time,  at 
common  law,  is  always  of  the  essence  of  the  contract;  that  is  to 
say,  if  a  person  promises  another  to  do  a  certain  thing  by  a  cer- 
tain day,  in  consideration  that  the  latter  will  do  something  for 
him,  the  thing  must  be  done  by  the  date  named,  or  the  latter 
is  discharged  from  his  promise.  Courts  of  equity,  however,  look 
further  into  the  intention  of  the  parties,  so  as  to  ascertain  whether, 
in  fact,  the  performance  of  the  contract  by  one  party  was  meant 
to  depend  upon  the  other  party's  promise  being  fulfilled  by  the 
day  named  therefor,  or  whether  a  day  was  named  merely  in  order 
to  secure  performance  within  a  reasonable  time.  If  the  latter  was 
found  to  be  the  intention  of  the  parties,  equity  would  not  refuse 
to  enforce  the  contract  if  the  promise  required  to  be  so  performed 
was  performed  within  a  reasonable  time.*     And  it  may  be  stated 

«  Ellis  V.  Thompson,  3  Mees.  &  W.  445 ;  Pope  v.  Manufacturing  Co.,  107  N. 
Y.  61,  13  N.  E.  592 ;  Boyd  v.  Gunnison,  14  W.  Va.  11 ;  Griffin  v.  Ogletree,  114 
Ala.  343,  21  South.  488;  Rogers  v.  Burr,  97  Ga.  10,  25  S.  E.  339;  Eppens, 
Smith  &  Wiemann  Co.  v.  Littlejohn,  164  N.  Y.  187,  58  N.  E.  19,  52  L.  R.  A. 
811 ;  Kelley,  Maus  &  Co.  v.  Hart-Parr  Co.,  137  Iowa,  713,  115  N.  W.  490.  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  212;  Cent.  Dig.  §§  9>,\-955. 

7  Ellis  V.  Thompson,  3  Mees.  «&  W.  445 ;  Pinney  v.  Railroad  Co.,  19  Minn. 
251  (Gil.  211);  Stange  v,  Wilson,  17  Mich.  342;  Coon  v.  Spaulding,  47  Mich. 
162,  10  N.  W.  183 ;  Stewart  v.  Marvel,  101  N.  Y.  357,  4  N.  E.  743 ;  ]McFadden 
V.  Henderson,  128  Ala.  221,  29  South.  G40.  See  ''Contracts,"  Dec.  Dig.  (Key- 
No.)  §  212;  Cent.  Dig.  §§  94't-955. 

8  Maltby  v.  Austin,  65  Wis.  527,  27  N.  W.  162 ;  Bellas  v.  Hays,  5  Serg.  &  R. 
(Pa.)  427,  9  Am.  Dec.  385;  Moote  v.  Scriven,  33  Mich.  500;  Andrews  v.  Sulli- 
van, 2  Gilman  (111.)  327,  43  Am.  Dec.  53;  Garretson  v.  Vanloon,  3  G.  Greene 
(Iowa)  128,  54  Am.  Dec.  492;  Taylor  v.  Baldwin,  27  Ga.  438,  73  Am.  Dec. 
736;   Thurston  v.  Arnold,  43  Iowa,  43;   Austin  v.  Wacks,  30  Minn.  335,   15 


§   221)  RULES   OF  CONSTRUCTION  513 

as  a  general  rule  that  a  court  of  equity  will  not  treat  time  as  of 
the  essence  of  a  contract,  unless  it  affirmatively  and  clearly  ap- 
pears that  the  parties  so  regarded  it.®  It  is  always  open  to  the 
parties,  however,  even  in  equity,  to  make  time  of  the  essence  of 
the  contract/"  In  some  of  the  states,  even  where  time  is  express- 
ly declared  to  be  of  the  essence  of  the  contract,  courts  of  equity 
will  disregard  the  stipulation  if  its  enforcement  would  be  uncon- 
scionable.^^ 

In  England,  and  in  some  of  our  states,  the  distinction  in  this 
respect  between  the  rules  of  law  and  equity  has  been  swept  away 
by  statutes  declaring,  substantially,  that  stipulations  in  contracts 
as  to  time  or  otherwise,  which  would  not  theretofore  have  been 
deemed  as  of  the  essence  of  such  contracts  in  a  court  of  equity, 
should  receive  in  all  courts  the  same  construction  and  effect  as 
they  would  have  received  in  equity.^* 

N.  W.  409 ;  Chapman  &  Dewey  Land  Co.  v.  Wilson,  91  Ark.  30,  120  S.  W.  391. 
See  Anson,  Cont   (8th  Ed.)  269.    See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  211; 

9  McLean  v.  Windham  Light  &  Lumber  Co.,  85  Vt.  167,  81  AtL  613.  See 
"Uontracts,"  Dec.  Dig.  {Key-tio.)  §  211;   Cent.  Dig.  §§  938-94S. 

10  Lennon  v.  Napper,  2  Schrales  &  L.  682;  Barnard  v.  Lee,  97  Mass.  92; 
Carter  v.  Phillips,  144  Mass.  100,  10  N.  E.  500;  Kemp  v.  Humphreys,  13  IlL 
573;  Potter  v.  Tuttle,  22  Conn.  512;  Cheney  v.  Libby,  134  U.  S.  68,  10  Sup. 
Ct.  498,  33  L.  Ed.  818;  Wells  v.  Smith,  7  Paige  (N.  Y.)  22,  31  Am.  Dec.  274; 
Grigs  V.  Landis,  21  N.  J.  Eq,  494 ;  Scott  v.  Fields,  7  Ohio,  90,  pt.  2 ;  Reed  v. 
Breeden,  61  Pa.  460;  Grey  v.  Tubbs,  43  Cal.  359;  Kirby  v.  Harrison,  2  Ohio 
St.  326,  59  Am.  Dec.  677;  Young  v.  Daniels,  2  Iowa,  126,  63  Am.  Dec.  477; 
Bullock  V.  Adams'  Ex'rs,  20  N.  J.  Eq.  367;  Jewett  v.  Black,  60  Neb.  173, 
82  N,  W.  375 ;  McLean  v.  Windham  Light  &  Lumber  Co.,  85  Vt.  167,  81  Atl. 
613.  Even  where  time  is  expressly  declared  to  be  of  the  essence,  it  may  be 
waived  by  the  conduct  of  the  party  for  whose  benefit  the  stipulation  is  made ; 
as  where  he  recognizes  the  contract  as  in  force  after  the  time  for  performance 
has  passed,  or  directs  changes  making  a  longer  time  necessary.  Brown  v. 
Safe-<Deposit  Co.,  128  U.  S.  414,  9  Sup.  Ct.  127,  32  L.  Ed.  4G8;  Phillips  & 
Colby  Const.  Co.  v.  Seymour,  91  V.  S.  646,  23  L.  Ed.  341;  Amoskeag  Mfg. 
Co.  V.  U.  S.,  17  Wall.  592,  21  L.  Ed.  715;  Paddock  v.  Stout,  121  III.  571,  13 
N.  E.  182;  Pinckney  v.  Dambmann,  72  Md.  173,  19  Atl.  450.  If  the  party 
prevents  performance  by  the  other,  he  cannot  insist  on  the  stipulation.  Dan- 
nat  v.  Fuller,  120  N.  Y.  554,  24  N.  E.  815;  King  Iron  Bridge  &  Mfg.  Co.  v. 
City  of  St  Louis  (C.  C.)  43  Fed.  768,  10  L.  II.  A.  826;  Rees  v.  Logsdon,  68 
Md.  93,  11  Ati.  708 ;  Ward  v.  Matthews,  73  Cal.  13,  14  Pac.  604 ;  post,  p.  5S3. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  211;  Cent.  Dig.  §§  93S-9Ji3. 

"Richmond  v.  Robinson,  12  Mich.  193;  Volz  v.  Grumniett,  49  Mich.  4.')3,  13 
N.  W.  814;  Austin  v.  "Wacks,  30  Minn.  335,  15  N,  W.  409;  Qulnn  v.  Roath, 
87  Conn.  16 ;  Ballard  v.  Cheney,  19  Neb.  58,  26  N.  W.  587.  See  "Contracts;' 
Dec.  Dig.  (Key-No.)  §  211;  Cent.  Dig.  §§  93S-9Jt3. 

12  In  Oklahoma  It  is  provided  by  statute  that  "time  is  never  considered 
as  of  the  essence  of  a  contract  unless  by  its  terms  expressly  so  provided." 
Claek  Cont.(3d  Ed.)— 33 


514  INTERPRETATION  OF  CONTRACT  (Ch.  10 

Where  time  is  not  made  of  the  essence  of  the  contract  by  ex- 
press stipulation,  it  may  nevertheless  be  held  to  have  been  intended 
from  the  nature  of  the  contract.^^  In  mercantile  contracts,  such 
as  contracts  for  the  manufacture  and  sale  of  goods,  it  is  generally 
held  that  time  is  of  the  essence;  and,  where  a  term  of  the  con- 
tract provides  for  the  time  of  shipment  or  delivery,  shipment  or  de- 
livery at  the  time  fixed  will  usually  be  regarded  as  a  condition 
precedent,  on  the  failure  of  which  the  other  party  may  repudiate 
the  whole  contract.^*  In  contracts  for  the  sale  of  land,  or  for  the 
performance  of  services,  or  the  construction  of  buildings,  and  the 
like,  time  will  be  held  of  the  essence  if,  from  the  nature  of  the 
property  and  the  circumstances,  it  seems  that  the  parties  must 
have  so  intended,  but  generally,  in  such  contracts,  time  is  not  of 
the  essence.^® 

Snyder  v,   Stribling,   18  Okl.  1G8,  80  Pac.  222.     See  "Contracts,"  Dec.  Big. 
(Key-No.)  §  211;  Cent.  Dig.  §§  928-9 JtS. 

i3XeTV  York  Life  Ins.  Co.  v.  Statliam,  93  U.  S.  24,  23  L.  Ed.  789;  Coleman 
V.  Applegarth,  68  Md.  21,  11  Atl.  284,  6  Am.  St.  Eep.  417 ;  Cabot  v.  Kent,  20 
R.  I.  197,  37  Atl.  945;  Savannah  Ice  Delivery  Co.  v.  Transit  Co.,  110  Ga. 
142,  35  S.  E.  280;  Rioux  v.  Brick  Co.,  72  Vt.  148,  47  Atl.  406.  See  ''Contracts," 
Dec.  Dig.  {Key-yo.)  §  211;  Cent.  Dig.  §§  938-91,3. 

14  BECK  &  PAULI  LITHOGRAPHING  CO.  V.  COLORADO  MILLING  & 
ELEVATOR  CO.,  52  Fed.  700,  3  C.  C.  A.  248,  Throckmorton  Cas.  Contracts, 
350;  Bowes  v.  Shand,  2  App.  Cas.  455;  Jones  v.  U.  S.,  96  U.  S.  24,  24  L.  Ed. 
644;  NORRINGTON  v.  WRIGHT,  115  U.  S.  188,  6  Sup.  Ct.  12,  29  L.  Ed. 
306,  Throckmorton  Cas.  Contracts,  386;  Cleveland  Rolling-:Mill  Co.  v.  Rhodes. 
121  U.  S.  255,  7  Sup.  Ct.  882,  30  L.  Ed.  920 ;  Cromwell  v.  Wilkinson,  18  Ind. 
365;  Camden  Iron- Works  v.  Fox  (C.  C.)  34  Fed.  200;  Scarlett  v.  Stein,  40  Md. 
512;  Lefferts  v.  Weld,  167  Mass.  531,  46  N.  E.  107;  Hull  Coal  &  Coke  Co.  v. 
Coke  Co.,  113  Fed.  256,  51  C.  C.  A.  213.  Cf.  Coyne  v.  Avery,  189  111.  378,  59 
N.  E.  788.  But  it  seems  that,  unless  a  contrary  intention  appears,  stipulations 
as  to  the  time  of  payment  are  not  usually  to  be  deemed  of  the  essence.  Mar- 
tlndale  v.  Smith,  1  Q.  B.  389,  395 ;  Mersey  Steel  &  Iron  Co.  v,  Naylor,  9  App. 
Cas.  434,  444;  Monarch  Cycle  Mfg.  Co.  v.  Wheel  Co.,  105  Fed.  324,  44  C.  C. 
A.  523;  West  v.  Bechtel,  125  Mich.  144,  84  N.  W.  69,  51  L.  R.  A.  791.  See 
NORRINGTON  v.  WRIGHT,  supra,  per  Gray,  J.  See  "Contracts,"  Dec.  Dig. 
(Key-Ko.)  %  211;  Cent.  Dig.  §§  938-91,3. 

15  Bro\vn  v.  Safe-Deposit  Co.,  128  U.  S.  403,  9  Sup.  Ct.  127,  32  L.  Ed.  468 ; 
Goldsmith  v.  Guild,  10  Allen  (Mass.)  239;  Green  v.  Covillaud,  10  Cal.  317, 
70  Am.  Dec.  725;  Waterman  v.  Banks,  144  U.  S.  394,  12  Sup.  Ct.  646,  36 
L.  Ed.  479 ;  Young  v.  Daniels,  2  Iowa,  126,  63  Am.  Dec.  477 ;  Derrett  v.  Bow- 
man, 61  Md.  526;  BECK  &  PAULI  LITHOGRAPHING  CO.  v.  COLORADO 
&  ELEVATOR  CO.,  3  C.  C.  A.  248,  52  Fed.  700,  Throckmorton  Cas.  Contracts, 
350;  Tayloe  v.  Saudiford,  7  Wheat.  13,  5  L.  Ed.  384;  Hambly  v.  Railroad  Co. 
(C.  C.)  21  Fed.  541.  See  "Contracts,"  Dec.  Dig.  (Key-yo.)  §  211;  Cent.  Dig. 
g§  93S-9',3;  "Vendor  and  Purchaser,"  Dec.  Dig.  {Key-yo.)  §  IS;  Cent.  Dig.  §§ 
121-125. 


222-223)  RULES  or  constkuotion  515 


SAME— RULES   AS    TO    PENALTIES   AND    LIQUIDATED 

DAMAGES 

222,  If  the  parties  fix  upon  a  certain  sum  to  be  paid  on  breach  of 

the  contract, 

(a)  It  may  be  recovered  if  it  was  really  fixed  upon  as  liquidated 

damages  for  nonperformance.    This  is  subject, to  the  rules 
of  construction  stated  below. 

(b)  But,  if  it  was  intended  in  the  nature  of  a  penalty  in  excess 

of  any  loss  likely  to  be  sustained,  the  recovery  will  be 
limited  to  the  loss  actually  sustained. 

223.  In  determining  whether  the  sum  named  is  a  penalty  or  liqui- 

dated damages,  these  rules  may  be  stated : 

(a)  The  courts  will  not  be  guided  by  the  name  given  to  it  by 

the  parties. 

(b)  If  the  matter  of  the  contract  is  of  certain  value,  a  sum  in 

excess  of  that  value  is  a  penalty. 

(c)  If  the  matter  is  of  uncertain  value,  the  sum  fixed  is  liqui- 

dated damages. 

(d)  If  a  debt  is  to  be  paid  by  installments,  it  is  no  penalty  to  \ 

make  the  whole  debt  due  on  nonpayment  of  an  install-     \ 
ment. 

(e)  If  some  terms  of  the  contract  are  of  certain  value,  and  some 

are  not,  and  the  penalty  is  applied  to  a  breach  of  any  one 
of  them,  it  is  not  recoverable  as  liquidated  damages.^^ 

Where  the  parties  to  a  contract  affix  a  sum  certain  to  be  paid 
on  the  nonperformance  of  his  promise  by  one  or  each  of  them, 
they  may  have  intended  (1)  to  assess  the  damages  at  which  they 
rated  the  nonperformance  of  the  promise,  or  (2)  to  secure  its  per- 
formance by  imposing  a  penalty  in  excess  of  the  actual  loss  likely 
to  be  sustained.  If  the  former  can,  according  to  the  rules  to  be 
presently  mentioned,  reasonably  be  conslrued  to  have  been  their 
intention,  the  sum  named  is  recoverable  as  "liquidated  damages," 
on  breach  of  the  promise.  If  the  latter  was  their  actual  or  pre- 
surned  intention,  the  amount  recoverable  is  limited  to  the  loss 
actually  sustained.  Formerly,  this  rule  existed  only  in  equity,  but 
for  a  long  time  it  has  been  also  applied  in  the  courts  of  law.^' 

18  Anson,  Cont.  (4th  Ed.)  256. 

17  Watts  V.  Camors,  115  U.  S.  353,  6  Sup.  Ct  91,  20  L.  Ed.  400;  Tayloe  y. 
Randiford,  7  Wheat.  13,  5  L.  Ed.  384.  See  "Dama(;e9,"  Dec.  Dig.  {Key-No.) 
§  76;    Cent.  Dig.  §§  151,,  155. 


516  INTERPRETATION  OF  CONTRACT  (Ch.  10 

Rules  of  Construction 

In  construing  contracts  in  which  such  a  term  is  introduced, 
the  courts  will  not  be  guided  by  the  name  given  to  the  sum 
to  be  paid.  If  it  is  liquidated  damages,  they  will  enforce  it, 
though  erroneously  called  a  "penalty,"  and,  on  the  other  hand,  if  it 
is  in  the  nature  of  a  penalty,  they  will  not  allow  it  to  be  enforced, 
although  designated  "liquidated  damages,"  ^* 

(1)  If  the  contract  is  for  a  matter  of  certain  value,  or  value 
easily  ascertainable,  and  a  sum  in  excess  of  that  value  is  fixed 
to  be  paid  on  breach  of  it,  the  sum  so  fixed  is  a  penalty,  and  not 
liquidated   damages.^* 

(2)  If  the  contract  is  for  a  matter  of  uncertain  value,  and  a 
sum  is  fixed  to  be  paid  on  breach  of  it,  and  is  not,  on  the  face  of 
the  contract,  so  greatly  in  excess  of  the  probable  damage  as  to 
show  that  the  parties  could  not  have  fixed  upon  it  otherwise  than 
as  a  penalty,  the  sum  is  recoverable  as  liquidated  damages.  There 
is  "nothing  illegal  or  unreasonable  in  the  parties,  by  their  mutual 
agreement,  settling  the  amount  of  damages,  uncertain  in  their 
nature,  at  any  sum  upon  which  they  may  agree."  *°     If  the  stip- 

18  Ward  V.  Building  Co.,  125  N.  Y.  230,  26  N.  E.  256;  Bagley  v.  Peddle,  16 
N.  Y.  4G9,  69  Am.  Dec.  713 ;  Condon  v.  Kemper,  47  Kan.  126,  27  Pac.  829,  13 
L.  R*  A.  671;  Wallis  v.  Carpenter,  13  Allen  (Mass.)  19;  Cheddick's  Ex'r 
V.  Marsh,  21  N.  J.  Law,  463 ;  Bignall  v.  Gould,  119  U.  S.  495,  7  Sup.  Ot.  294, 
30  L.  Ed.  491 ;  Sanford  v.  Bank,  94  Iowa,  680,  63  N.  W.  459 ;  J.  G.  Wagner 
Co.  V.  Cawker,  112  Wis.  532,  88  N.  W.  599.  See  "Damages,"  Dec.  Dig.  {Key- 
No.)  §  78;   Cent.  Dig.  §  157. 

19  Clements  v.  Railroad  Co.,  132  Pa.  445,  19  Atl.  274,  276;  Brennan  v. 
Clark,  29  Neb.  385,  45  N.  W.  472;  Willson  v.  City  of  Baltimore,  83  Md.  203, 
34  Atl.  774,  55  Am.  St.  Rep.  339.  See  "Damages,"  Dec.  Dig.  (Key-No.)  §  79; 
Vent.  Dig.  §  164. 

20  JAQUITH  V.  HUDSON,  5  Mich.  123,  Throckmorton  Cas.  Contracts,  355; 
Kemble  v.  Farren,  6  Ring.  147;  Poppers  v.  Meagher,  148  111.  192,  35  N.  E. 
805;  Maxwell  v.  Allen,  78  Me.  32,  2  Atl.  386.  57  Am.  Rep.  783;  Keeble  v. 
Keeble,  85  Ala.  552,  5  South.  149 ;  Gushing  v.  Drew,  97  Mass.  445 ;  Tennessee 
Mfg.  Co.  V.  James,  91  Tenn.  154,  18  S.  W.  262,  15  L.  R.  A.  211,  30  Am.  St 
Rep.  865 ;  Easier  v.  Beard,  39  Minn.  32,  38  N.  W.  755 ;  Lansing  v.  Dodd,  45 
N.  J.  Law,  525;  Trower  v.  Elder,  77  111.  452;  Morse  v.  Rathburn,  42  Mo. 
598,  97  Am.  Dee.  359 ;  Pennypacker  v.  Jones,  106  Pa.  237 ;  May  v.  Crawford, 
142  Mo.  390,  44  S.  W.  260;  City  of  New  Britain  v.  Telephone  Co.,  74  Conn. 
326,  50  Atl.  881,  1015;  Pressed  Steel  Car  Co.  v.  Railroad  Co.,  121  Fed.  609, 
57  C.  C.  A.  635;  Elizabethtown,  etc.,  R.  Co.  v.  Geoghegan,  9  Bush  (Ky.)  57; 
Madler  v.  Silverstone,  55  Wash.  159,  104  Pac.  165,  34  L.  R.  A.  (N.  S.)  1  and 
note.  Stipulation  in  building  contract  for  payment  by  contractor  of  certain 
sum  for  each  day  that  work  remains  uncompleted  after  certain  day  construed 
as  liquidated  damages.  Legge  v.  Harlock,  12  Q.  B.  1015 ;  Fletch  v.  Dyche, 
2  Term  R.  32;  Hall  v.  Crowley,  5  Allen  (Mass.)  304,  81  Am.  Dec.  745;  Ward 
V.  Building  Co.,  125  N.  Y.  230,  26  N.  E.  256;  Monmouth  Park  Ass'n  v.  Iron 
Works,  55  N.  J.  Law,  132,  26  Atl.  140,  19  L.  R.  A.  456,  39  Am.  St.  Rep.  620 ; 


§§  222-223)  RULES  of  construction  517 

ulation  is  so  construed,  the  plaintiff  is  limited  to  the  amount 
named,  though  his  actual- damages  may  be  greater.'^^ 

Courts  lean  against  forfeiture,  and  towards  construing  stipu- 
lations for  liquidated  damages  as  penalties,  when  the  amount  on 
the  face  of  the  contract  is  out  of  all  proportion  to  the  possible 
loss ;  and  many  courts  declare  that  the  parties,  even  if  they  in- 
tended to  fix  upon  the  amount  stipulated  as  liquidated  damages, 
will  nevertheless  be  limited  to  the  recovery  of  actual  damages 
if  the  amount  stipulated  for  is  so  greatly  in  excess  of  the  actual 
damages  that  it  is  in  effect  a  penalty.  In  other  words,  the  real 
question  is  "not  what  the  parties  intended,  but  whether  the  sum 
is,  in  fact,  in  the  nature  of  a  penalty;  and  this  is  to  be  determined 
by  the  magnitude  of  the  sum,  in  connection  with  the  subject- 
matter,  and  not  at  all  by  the  words  or  the  understanding  of  the 
parties.  The  intention  of  the  parties  cannot  alter  it."  ^^  Other 
courts,  on  the  other  hand,  maintain  that  in  such  cases  the  inten- 
tion of  the  parties  must  govern,  and  that  whether  a  stipulation 
to  pay  a  sum  of  money  is  to  be  treated  as  a  penalty  or  as  an  agreed 
ascertainment  of  damages  is  to  be  determined  by  the  contract, 
fairly  construed ;  it  being  the  duty  of  the  court  always,  where 
the  damages  are  uncertain  and  have  been  liquidated  by  agreement, 
to  enforce  the  contract.^'     "It  may,  we  think,  fairly  be  stated," 

Lincoln  v.  Granite  Co.,  56  Ark.  405,  19  S.  W.  1056;  De  Graflf  v.  Wickham, 
89  Iowa,  720,  52  N.  W.  503,  57  N.  W.  420 ;  Fruin  v.  Railway  Co.,  89  Mo.  397, 
14  S.  W.  557;  Texas  &  St.  L.  Ry.  Co.  v.  Rust  (C.  C.)  19  Fed.  239;  Hennessy 
V.  Metzger,  152  111.  505,  38  N.  E.  1058,  43  Am.  St.  Rep.  2G7 ;  Curtis  v.  Van 
Bergh,  161  N.  Y.  47,  55  N.  E.  398;  Kunkel  v.  Wherry,  189  Pa.  198,  42  Atl. 
112,  69  Am.  St  Rep.  802;  Illinois  Cent.  R.  Co.  v.  Cabinet  Co.,  104  Tenn. 
568,  58  S.  W.  303,  50  *L.  R.  A.  729,  78  Am.  St.  Rep.  933 ;  Drumheller  v.  Surety 
Co.,  30  Wash.  530,  71  Pae.  25 ;  Malone  v.  City  of  Philadelphia,  147  Pa.  410, 
23  Atl.  628 ;  Crawford  v.  Heatwole,  110  Va.  358,  66  S.  E.  46,  34  L.  R.  A.  (N. 
S.)  587  and  note.  But  see,  contra,  where  the  stipulation  was  greatly  in  ex- 
cess of  any  possible  damage  from  the  delay.  Cochran  v.  Railway  Co.,  113 
Mo.  359,  21  S.  W.  6 ;  Clements  v  Railroad  Co.,  132  Pa.  445,  19  Atl.  274,  276 ; 
Seeman  v.  Biemann,  108  Wis.  365,  84  N.  W.  490.  See  "Danmges,"  Dec.  Dig. 
{Key-No.)  §  79;   Cent.  Dig.  §  IGJf. 

21  Winch  V.  Ice  Co.,  86  N.  Y.  618 ;  Welch  v.  McDonald,  85  Va.  500,  8  S.  E. 
711.     See  ''Damages:'  Dec.  Dig.  {Key-No.)  §  85;   Cent.  Dig.  §§  179-187. 

2  2  JAQUITH  V.  HUDSON,  5  Mich.  123,  Throckmorton  Cas.  Contracts,  355. 
See,  also,  Myer  v.  Hart,  40  Mich.  517,  29  Am.  Rep.  553 ;  Jaqua  v.  Heading- 
ton,  114  Ind.  309,  16  N.  E,  527 ;  Brewster  v.  Edgerly,  13  N.  II.  275 ;  Condon 
V.  Kemper,  47  Kan.  126,  27  Pac.  829,  13  L.  R.  A.  671 ;  Cotheal  v.  Talmage,  9 
N.  Y.  551,  61  Am.  Dec.  716;  Colwell  v.  Lawrence,  38  N.  Y.  71.  "The  inten- 
tion is  not  all  controlling,  for  in  some  cases  the  subject-matter  and  surround- 
ings of  the  contract  will  control  the  intention  where  equity  absolutely  de- 
mands it."  Streeper  v.  Williams,  48  Pa.  450.  See  "Damages,"  Dec.  Dig. 
(Rey-No.)  %  77;    Cent.  Dig.  §  156. 

2  3  Sun  Printing  &  Publishing  Ass'n  v.  Moore,  183  V.  S.  642,  22  Sup.  Ct  240, 


518  INTERPRETATION  OF  CONTRACT  (Ch.  10 

it  was  said  in  a  late  case  in  the  supreme  court  of  the  United 
States,^*  "that  when  a  claimed- disproportion  has  been  asserted 
in  actions  at  law  it  has  usually  been  an  excessive  disproportion 
between  the  stipulated  sum  and  the  possible  damages  resulting 
from  a  trivial  breach  apparent  on  the  face  of  the  contract,  and 
the  question  of  disproportion  has  been  simply  an  element  enter- 
ing into  the  consideration  of  the  question  of  what  was  the  intent 
of  the  parties,  whether  bona  fide  to  fix  the  damages,  or  to  stip- 
ulate the  payment  of  an  arbitrary  sum  as  a  penalty,  by  way  of 
security." 

(3)  If  a  debt  is  to  be  paid  by  installments,  it  is  not  imposing 
a  penalty  to  provide  that  on  default  in  any  one  payment  the  en- 
tire balance  of  unpaid  installments  shall  fall  due.^'' 

(4)  If  the  contract  contains  a  number  of  terms,  some  of  which 
are  of  a  certain  value,  or  if  it  contains  a  number  of  terms  of 
widely  different  value,  and  the  penalty  is  applied  to  a  breach  of 
any  one  of  them,  it  is  not  recoverable  as  liquidated  damages, 
however  strongly  the  parties  may  have  expressed  their  intention 
that  it  shall  be  so.^*  In  a  leading  case  on  this  point  the  defend- 
ant had  agreed  to  act,  and  conform  to  all  the  regulations,  at  plain- 
tiff's theater  for  several  seasons,  the  plaintiff  to  pay  him  £3.  6s. 
8d.  for  every  night  that  the  theater  should  be  open  for  perform- 
ance, and  it  was  agreed  that,  for  a  breach  of  any  term  of  the  agree- 

46  L.  Ed.  306.  See,  also,  Brooks  v.  City  of  Wichita,  114  Fed.  297,  52  C.  C.  A. 
209;  Wood  V.  Paper  Co.,  121  Fed.  818,  58  C.  C.  A.  250;  Taylor  v.  News- 
paper Co.,  83  Minn.  523,  SO  N.  W.  700,  85  Am.  St.  Rep.  473;  Knox  Rock 
Blasting  Co,  v.  Stone  Co.,  04  Ohio  St.  301,  60  N.  E.  503 ;  Emery  v.  Boyle,  200 
Pa.  249,  49  Atl.  779;  Garst  v.  Harris,  177  Mass.  72,  58  N.  E.  174;  Gueriu  v. 
Stacy,  175  Mass.  595,  50  N.  E.  892.  See  "Damages,"  Dec.  Dig.  {Key-Xo.)  § 
SO;    Cent.  Dig.  §§  110-115. 

24  Sun  Printing  &  Publishing  Ass'n  v.  Moore,  183  U.  S.  042,  672,  22  Sup. 
Ct.  240,  40  L.  Ed.  360.  See  "Damages,"  Dec.  Dig.  (Keij-No.)  §  80;  Cent.  Dig. 
§§  110-115. 

2  5  Protector  Loan  Co.  v.  Grice  (Ct.  App.)  5  Q.  B.  Div.  592;  Dean  v.  Nel- 
son, 10  Wall.  158,  19  L.  Ed.  920.  So  of  a  stipulation  that,  if  interest  is  not 
paid,  the  principal  shall  become  due.  Schooley  v.  Romain,  31  Md.  574,  100 
Am.  Dec.  87;  Mobray  v.  Leckie,  42  Md.  474.  See  "Damages,"  Dec.  Dig. 
{Key-No.)  §  78;    Cent.  Dig.  §  163. 

26  Kemble  v.  Farren,  0  Bing.  141;  Carter  v.  Strom,  41  Minn.  522,  43  N.  W. 
394;  Watts  v.  Camors,  115  U.  S.  353,  6  Sup.  Ct.  91,  29  L.  Ed.  406;  McPher- 
son  V.  Robertson,  82  Ala.  459,  2  South.  333;  Lampman  v.  Cochran,  16  N.  Y. 
275;  Wilhelm  v.  Eaves,  21  Or.  194,  27  Pac.  1053,  14  L.  R.  A.  297;  Hough  v. 
Kugler,  36  Md.  186;  Daily  v.  Litchfield.  10  Mich.  29;  Trustees  of  First  Or- 
thodox Congregational  Church  v.  Walrath,  27  Mich.  232;  Trower  v.  Elder,  77 
HI.  452;  Lyman  v.  Babcock,  40  Wis.  503;  Monmouth  Park  Ass'n  v.  Warren, 
55  N.  J.  Law,  598,  27  Atl.  932.  See  "Damages,"  Dec.  Dig.  (Key-No.)  |  78; 
Cent.  Dig.  ^  163. 


§    224)  RULES   OF  CONSTRUCTION  519 

ment  by  either  party,  the  one  in  default  should  pay  the  other 
£1,000  which  sum  was  thereby  declared  to  be  "liquidated  and 
ascertained  damages,  and  not  a  penalty."  The  court  held  that, 
in  spite  of  the  explicit  statement  of  the  parties  that  the  sum 
was  not  to  be  regarded  as  a  penalty,  it  must  be  so  regarded.  If 
the  penal  clause  had  been  limited  to  breaches  uncertain  in  their 
nature  and  amount  it  might,  as  was  thought,  have  had  the  effect 
of  ascertaining  the  damages;  "but,"  it  was  said,  "in  the  present 
case  the  clause  is  not  so  confined ;  it  extends  to  the  breach  of  any 
stipulation  by  either  party.  If,  therefore,  on  the  one  hand,  the 
plaintiff  had  neglected  to  make  a  single  payment  of  £3.  6s.  8d, 
per  day,  or,  on  the  other  hand,  the  defendant  had  refused  to 
conform  to  any  usual  regulation  of  the  theater,  however  minute 
or  unimportant,  it  must  have  been  contended  that  the  clause  in 
question,  in  either  case,  would  have  given  the  stipulated  damages 
of  £1,000.  But  that  a  very  large  sum  should  become  immediately 
payable  in  consequence  of  the  nonpayment  of  a  very  small  sum, 
and  that  the  former  should  not  be  considered  as  a  penalty,  appears 
to  be  a  contradiction  in  terms;  the  case  being  precisely  that 
in  which  courts  of  equity  have  always  relieved,  and  against  which 
courts  of  law  have,  in  modern  times,  endeavored  to  relieve,  by 
directing  juries  to  assess  the  real  damages  sustained  by  the  breach 
of  the  agreement."  '^^ 


SAME— JOINT  AND  SEVERAL  CONTRACTS 

224.  Whether  or  not  a  contract  with  several  persons  on  either  or 
both  sides  is  to  be  construed  as  joint  or  several  depends 
upon  the  intention  of  the  parties  as  manifested  in  the 
evidence  of  their  agreement.^*  The  following  rules  may 
be  stated: 

LIABILITIES — (a)  A  promise  by  two  or  more  in  the  plural 
num^ber  is  prima  facie  joint,  while  a  promise  in  the 
singular  is  prima  facie  several;  but  this  presumption  will 
yield  if,  from  the  whole  agreement,  a  contrary  intention 
appears. 

2T  Kemble  v.  Farren,  6  Bing.  141.  See  "Damages,"  Dec.  Dig.  (Kev-Xo.)  § 
78;    Cent.  Dig.  §  165. 

28  1  Pars.  Cont.  10;  Hall  v.  Leigh,  8  Cranch,  50,  3  L.  Ed.  484;  Olmstead 
V.  Bailey,  3.5  Conn.  584;  Eastman  v.  Wright,  6  Pick.  (Mass.)  31G;  Wil- 
loughby  V.  Willoughby,  5  N.  H.  244;  Boggs  v.  Curtin,  10  Serg.  &  R.  (Pa.) 
211 ;  Elliott  V.  Bell,  37  W.  Va.  8;^>4,  17  S.  E.  399.  See  "Contracts,"  Dec.  Dig. 
(Key-yo.)  §  182;    Cent.  Dig.  §§  7S0-787. 


520  INTERPRETATION  OF  CONTRACT  (Ch.  10 

(b)  Subscriptions  by  a  number  of  persons  to  promote  some 
common  enterprise,  though  joint  in  form,  are  several 
promises. 

RIGHTS — If  the  words  will  admit  of  it,  the  contract,  as  regards 
the  promisees,  will  be  joint  or  several,  according  as  their 
interest  is  joint  or  several. 

Joint  and  Several  Liabilities 

In  all  written  contracts,  the  language  used  is  the  primary  guide 
to  the  meaning;  but  it  is  not  always  conclusive.  The  language 
is  sometimes  ambiguous,  and  often  not  exclusive  of  an  intention 
to  contract  either  way.  In  such  cases  the  sense  must  be  derived 
from  the  interests  and  relations  of  the  parties  as  appearing  in  the 
contract.^*  The  same  is  true  of  oral  contracts  where  there  is  no 
direct  evidence  of  the  intention.  Wherever  the  promise  is  by  two 
or  more  persons,  as  where  the  words  "we  promise,"  etc.,  are  used, 
the  liability  is  prima  facie  joint; '°  but  the  use  of  such  expressions 
will  not  make  the  promise  joint  if,  from  the  whole  instrument, 
a  contrary  intention  appears.^^  Where  the  promise  is  in  the  sin- 
gular, the  liability  is  prima  facie  several;  but,  as  in  other  cases, 
the  whole  instrument  may  show  a  contrary  intention,  and  this 
intention  must  govern. ^'^ 

In  the  case  of  subscriptions  by  a  number  of  persons  to  promote 
some  common  enterprise,  the  promises,  though  joint  in  form,  are 
held  to  be  several.  Each  subscriber  is  held  to  promise  severally 
to  pay  the  amount  of  his  subscription,  and  an  action  against  all 
the  subscribers  jointly  will  not  lie.     It  clearly  appears  from  the 

29  Keightley  v.  Watson,  3  Exch.  716;  Strelchen  v.  Fehleisen,  112  Iowa,  612, 
84  N.  W.  715,  51  L.  R.  A.  412;  Smith  v.  Woodward,  51  Colo.  311,  117  Pac. 
140;  Morrison  v,  American  Surety  Co.,  224  Pa.  11,  73  Atl.  10.  See  "Con- 
tracts," Dec.  Dig.   {Eey-'S^o.)  §  18Jt;    Cent.  Dirj.  §  789. 

8  0  Sheppard's  Touchstone,  375;  CITY  OF  PHILADELPHIA  v.  REEVES 
&  CABOT,  48  Pa.  472,  Throckmorton  Cas.  Contracts,  333 ;  Turley  v.  Thomas, 
31  Nev.  181,  101  Pac.  568,  135  Am.  St.  Rep.  667;  Morrison  v.  American  Sure- 
ty Co.,  224  Pa.  11,  73  Atl.  10.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  18-i; 
Cent.  Dig.  §  789. 

31  King  V.  Hoare,  13  Mees.  &  W.  494;  Bartlett  v.  Robbins,  5  Mete.  (Mass.) 
184;  Ehie  v.  Purdy,  6  Wend.  (N.  Y.)  629;  New  Haven  &  N.  Co.  v.  Hayden, 
119  Mass.  301;  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J.  Eq.  507,  43  Atl. 
723,  46  L.  R.  A.  255,  78  Am.  St.  Rep.  612 ;  McArthur  v.  Board,  119  Iowa,  562, 
93  N.  W.  580.    See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  iS.J;   Cent.  Dig.  §  789. 

3  2  March  v.  Ward,  Peake,  130;  Dill  v.  White,  52  Wis.  456,  9  N.  W.  404; 
Fond  du  Lac  Harrow  Co.  v.  Haskins,  51  Wis.  135,  8  N.  W.  15;  Van  Alstyne 
V.  Van  Slyck,  10  Barb.  (N.  Y.)  387;  Hemmenway  v.  Stone,  7  Mass.  .58.  5 
Am.  Dec.  27;  Slater  v.  Magraw,  12  Gill  &  J.  (Md.)  265.  See  "Contracts;' 
Dec.  Dig.  (Key-No.)  §  IS-',;    Cent.  Dig.  §  789. 


§  224)  RULES  or  consteuction  521 

character  of  such  a  contract  that  each  subscriber  only  intends  to 
bind  himself  fOr  his  own  subscription,  and  this  intention  must 
prevail,  notwithstanding  the  joint  form  of  the  promise.^' 

As  we  have  seen,  these  rules  are  to  a  great  extent  modified  by 
statute  in  most  of  the  states."* 

Joint  and  Several  Rights 

With  respect  to  the  rights  of  several  persons  under  such  con- 
tracts, the  rule  of  construction  has  been  thus  stated:'"  "A  con- 
tract will  be  construed  to  be  joint  or  several,  according  to  the 
interests  of  the  parties,  if  the  words  are  capable  of  that  construc- 
tion, or  even  if  not  inconsistent  with  it.  If  the  words  are  am- 
biguous, or  will  admit  of  it,  the  contract  will  be  joint  if  the  interest 
be  joint,  and  it  will  be  several  if  the  interest  be  several. ^^  But 
a  contract  entered  into  with  several  persons,  in  respect  of  the 
same  matter  or  interest,  cannot  by  any  words  be  made  so  as 
to  entitle  them  both  jointly  and  severally."  " 

8  8  Davis  V.  Belford,  70  Mich.  120,  37  N.  W.  919;  Hall  v.  Thayer,  12  Mete. 
(Mass.)  130;  Davis  &  Rankin  Bldg.  «&  Mfg.  Co.  v.  Barber  (C.  C.)  51  Fed. 
148;  Chicago  Bldg.  &  Mfg.  Co.  v.  Graham,  78  Fed.  83,  23  C.  C.  A.  657;  Davis 
&  Rankin  Bldg.  &  Mfg.  Co.  v.  Booth,  10  Ind.  App.  364,  37  N.  E.  818;  Cornish 
v.  West,  82  Minn.  107,  84  N.  W.  750,  52  L.  R.  A.  355.  And  see  Waddy  Blue- 
grass  Creamery  Co.  v.  Manufacturing  Co.,  103  Ky.  579,  45  S.  W.  895.  Contra, 
Davis  V.  Shafer  (C.  C.)  50  Fed.  764.  See  "Contracts,"  Deo.  Dig.  (Key-No.) 
f  184;   Cent.  Dig.  $  789. 

8*  Ante,  p.  475. 

8  0  Leake,  Cont.  218. 

seEccleston  v.  Clipsham,  1  W.  Saund.  153;  Sorsble  t.  Park,  12  Mees.  & 
W.  146 ;  Pickering  v.  De  Rochemont,  45  N.  H.  67 ;  Gould  v.  Gould,  6  Wend. 
(N.  Y.)  263;  Appleton  v.  Bascom,  3  Mete.  (Mass.)  169;  Capen  v.  Barrows, 
1  Gray  (Mass.)  376;  Loinbard  v.  Cobb,  14  Me.  222;  Duncan  v.  Willis,  51 
Ohio  St.  433,  38  N.  E.  13 ;  Pennville  Natural  Gas  &  Oil  Co.  v.  Thomas,  21 
Ind.  App.  1,  51  N.  E.  351 ;  Montana  Min.  Co.  v.  Milling  Co.,  19  Mont.  313,  48 
Pac.  305 ;  Curry  v.  Railway  Co.,  58  Kan.  6,  48  Pac.  579 ;  Atlanta  &  St.  A.  B. 
R.  Co.  V.  Thomas,  60  Fla.  412,  53  South.  510;  International  Hotel  Co.  v. 
Flynn,  238  111.  036,  87  N.  E.  855,  15  Ann.  Cas.  1059.  Where  two  persons  are 
accepted  as  depositors  by  a  savings  bank,  and  both  sign  the  depositors'  book, 
and  the  moneys  are  made  payable  to  either,  the  contract  is  with  both  jointly, 
and  has  the  incident  of  survivorship.  Dunn  v.  Houghton  (N.  J.  Ch.)  51  Atl. 
71.     See  "Contracts,"  Dec  Dig.  {Key-No.)  §§  182-184;    Cent.  Dig.  |§  780-789. 

«T  Ante,  p.  481,  note  42. 


522 


DISCHARGE    OF   CONTRACT 


(Ch.  11 


CHAPTER  XI 

DISCHARGE  OF  CONTRACT 

225.  In  General. 

22G-227,  By  Agreement— In  General. 

22S-232.  Waiver,  Cancellation,  or  Rescission. 

233-234.  Substituted  Contract. 

235.  Form   of   Discharge   by   New   Agreement 

236.  Conditions  Subsequent. 

237.  By  Performance — In  General. 
23S.  Payment. 

239.  Tender. 

240-241.  By  Breach— In   General. 

242.  Forms  of  Discharge  by  Breach. 

243-244.  Renunciation  of  Contract. 

245.  Impossibility  Created  by  Party. 

246.  Breach  by  Failure  of  Performance. 
247-248.  Independent  Promises. 
249-253.  Conditional  Promises. 

254.  By  Impossibility  of  Performance. 

255.  By  Operation  of  Law. 

256.  Merger. 

257.  Alteration  of  Written  Instrument. 

258.  Proceedings  in  Bankruptcy. 

259.  Remedies  on  Breach  of  Contract, 
260-263.  Damages. 

264.  Specific  Performance. 

265.  Discharge  of  Right  of  Action. 

•  260.  By  the  Consent  of  the  Parties. 

267.  By  Judgment. 

268-269.  By  Lapse  of  Time. 


IN  GENERAL 


225.  The  modes  in  which  a  contract  may  be  discharged  are  as 
follows : 

(a)  By  agreement. 

(b)  By  performance. 

(c)  By  breach. 

(d)  By  impossibility  of  performance. 

(e)  By  operation  of  law. 

It  remains  to  consider  the  modes  in  which  the  contractual  tie 
may  be  loosed,  and  the  parties  wholly  freed  from  their  rights  and 
liabilities  under  the  contract.  In  dealing  with  this  part  of  the 
subject  we  shall  consider,  not  only  the  mode  in  which  the  original 


§§    228-232)  BY   AGREEMENT  523 

contract  may  be  discharged,  but,  in  case  of  its  being  discharged 
by  breach,  the  mode  in  which  the  right  of  action  arising  thereupon 
may  be  extinguished.* 


DISCHARGE  OF  CONTRACT  BY  AGREEMENT 

226.  A  contract  may  be  discharged  by  an  agreement  to  that  effect 

between  the  parties.    This  may  be — 

(a)  By  waiver,  cancellation,  or  rescission. 

(b)  By  a  substituted  contract. 

(c)  By  the  happening  of  conditions  subsequent,  expressed  or 

implied  in  the  contract. 

227.  Such  an  agreement  must  possess  all  the  elements  requisite 

to  the  formation  of  any  other  valid  agreement.  There 
are  some  exceptions  as  to  the  necessity  for  consideration, 
which  will  be  hereafter  noticed. 

As  it  is  their  agreement  which  binds  the  parties,  so  by  their 
agreement  they  may  be  loosed  from  the  contractual  tie.  It  is 
scarcely  necessary  to  say  that  to  render  an  agreement  effective  as  a 
discharge  it  must  be  a  valid  agreement;  and,  to  be  so,  it  must  be 
accompanied  by  all  the  elements,  such  as  communication  of  mutual 
intention,  real  consent,  parties  having  capacity,  etc.* 


SAME— WAIVER,   CANCELLATION,   OR   RESCISSION 

228.  A  contract  may  be  discharged  by  an  express  agreement  that 

it  shall  no  longer  bind  either  party.    This  process  is  called 
a  waiver,  cancellation,  or  rescission  of  the  contract.^ 

229.  A  waiver  is  a  relinquishment  of  a  right  under  a  contract. 

230.  A  rescission   is   a  complete  unmaking   of  the  contract  and 

contemplates  the  restoration  of  the  parties  to  their  orig- 
inal position  as  if  the  contract  had  not  been  made.* 

1  Anson,  Cont.  (4th  Ed.)  257. 

2  Murray  v.  Harway,  56  N.  Y.  337;  Wheelor  v.  Railroad  Co.,  115  U.  S.  20, 
5  Sup.  Ct.  10€1,  IIGO,  20  L.  Ed.  341 ;  Stix  v.  Roulston,  88  Ga.  743,  15  S.  B. 
82G;  O'Donnell  v.  Brand,  85  Wis.  07,  55  N.  W.  154;  Wood  v.  Moriarty,  IG 
R.  I.  201,  14  Atl.  855;  Lauer  v.  Loo,  42  Pa.  165;  Smith  v.  Watson,  82  Va. 
712,  1  S.  E.  06.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  253;  Cent.  Dig.  §§ 
llJ/G-lUiS. 

a  Auson,  Cont   (4th  Ed.)  258-2G0. 

4  KELLETT  V.  ROBIE,  00  Wis.  303,  74  N.  W.  781,  Throckmorton  Cas.  Con- 


524  DISCHARGE    OF    CONTRACT  (Ch.  11 

231.  Cancellation  is  sometimes  used  in  the  sense  of  rescission,  but 

more  properly  it  signifies  the  defacing  of  a  written  con- 
tract with  intent  to  destroy  its  legal  effect. 

232,  A  consideration  is  necessary  to  support  such  an  agreement, 

except : 
^  EXCEPTIONS— (a)  Where  the  agreement  is  under  seal. 

(b)  A   negotiable   instrument   may   be   discharged  by  its  mere 
surrender  with  an  intent  to  discharge  it. 

Waiver  is  to  be  distinguished  from  a  rescission,  in  that  it  is  a 
mere  release  of,  or  failure  to  insist  upon,  a  right;  whereas  a 
rescission  destroys  the  entire  contract  and  entitles  each  party  to 
recover  any  consideration  given  by  him  under  it.'  Rights  ac- 
quired by  contract  may  be  relinquished  or  abandoned,  either  by 
agreement  or  by  conduct  indicating  such  a  purpose.'  In  order, 
however,  that  a  waiver  may  be  binding  upon  a  party,  it  must 
clearly  appear  that  there  was  an  intentional  relinquishment  of 
a  known  right.^ 

In  the  absence  of  a  consideration,  a  promise  to  forego  the  right 
to  demand  performance  of  a  contract  would  be  nudum  pactum 
and  void.  It  has  often  been  said  that  "a.  simple  contract  may, 
before  breach,  be  waived  or  discharged  without  a  deed  and  with- 
out consideration";  but  this  is  inaccurate.  A  consideration,  or 
a  deed  dispensing  with  the  necessity  for  a  consideration,  is  always 
essential.  Where  the  contract  is  wholly  executory,  a  mere  agree- 
ment between  the  parties,  that  it  shall  no  longer  bind  them,  is 
valid,  for  the  discharge  of  each  by  the  other  from  his  liabilities 
under  the  contract  is  a  sufficient  consideration  for  the  promise 
of  the  other  to  forego  his  rights.*    If  the  agreement  is  not  mutual 

tracts,  3G3.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  2T4;   Cent.  Dig.  §§  1202- 
1206. 

6  Reiger  v.  Turley,  151  Iowa,  491,  131  N.  W.  8G6 ;  Lewis  v.  Gay,  151  N.  0. 
168,  65  S.  E.  907 ;  J.  K,  Armsby  Co.  v.  Grays  Harbor  Comiriercial  Co.,  62  Or. 
173,  123  Pac.  32.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §§  252,  262;  Cent.  Dig. 
§§  1145,  1181-1183. 

8  Burns  v.  McFarland,  146  N.  C.  382,  59  S.  E.  1011.  See  "Contracts"  Dec. 
Dig.  (Key-No.)  §  256;   Cent.  Dig.  §  1151. 

7  Boyden  v.  Hill,  198  Mass.  477,  85  N.  E.  413 ;  Fitzgerald  v.  Frankel,  100 
Va.  603,  64  S.  E.  941.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  $  256;  Cent. 
Dig.  §  1151. 

8  Rollins  V.  Marsh,  128  Mass.  116 ;  Cutter  v,  Cochrane,  116  Mass.  403 ; 
Blood  V.  Enos,  12  Vt.  625,  36  Am.  Dec.  363 ;  Kelly  v.  Bliss,  54  Wis.  187,  11 
N.  W.  488;  Blagborne  v.  Hunger,  101  Mich.  375,  59  N.  W.  657;  Perkins  v. 
Hoyt,  35  Mich.  506;  Flegal  v.  Hoover,  156  Pa.  276,  27  Atl.  162;  Farrar  v. 
Toliver,  88  111.  408;    Hobbs  v.  Brick  Co.,  157  Mass.  109,  31  N.  E.  756;    Wind- 


§§    228-232)  BY   AGREEMENT  525 

— that  is,  if  it  is  a  waiver  of  his  rights  by  one  party  only, — 
there  is  no  consideration,  and  the  agreement  is  void.®  If  a 
contract  has  been  executed  on  one  side,  an  agreement  that  it 
shall  no  longer  be  binding,  without  more,  is  void  for  want  of 
consideration/"  To  illustrate  these  distinctions :  If  a  person  "^ 
agrees  to  buy  goods  from  another,  or  to  perform  services  for 
him,  and  the  other  agrees  to  pay  therefor,  the  contract  may  be 
discharged  by  a  simple  agreement  to  that  eflfect,  so  long  as  the 
goods  or  services  have  not  been  delivered  or  performed,  and  the 
money  has  not  been  paid.  After  performance  on  either  side, 
however,  a  promise  by  the  party  so  performing  not  to  require 
performance  by  the  other  would  not  be  binding  unless  under  seal 
or  supported  by  a  consideration. 

In  England  there  is  an  exception  to  this  rule  in  the  case  of  bills 
of  exchange  and  promissory  notes.  The  rights  of  the  holder  of 
such  instruments  may  there  be  waived  and  discharged  without 
any  consideration  for  their  waiver.^^  In  this  country  the  excep- 
tion is  not  recognized.  Such  instruments,  in  this  respect,  stand 
on  the  same  footing  as  any  other  simple  contract,^^  with  this 
exception,  namely,  that,  if  the  instrument  itself  is  destroyed  or 
surrendered  for  the  purpose  of  discharging  the  debt,  it  will  so 
operate  without  any  consideration.^^  The  reason  for  the  excep- 
tion is  that  there  is  a  valid  executed  gift  of  the  instrument.^* 

ham  V.  Doles,  59  Ga.  265 ;   Brown  v.  Lumber  Co.,  117  N.  C.  287,  23  S.  E.  253 ; 
ante,  p.  158.     See  "Contracts,"  Dec.  Dig.  (Kev-No.)  §  255;   Cent.  Dig.  §  1150. 
8  King  V.  Gillett,  7  Mees.  &  W.  55.     See  "Contracts,"  Dec.  Dig.   (Key-No.) 
I  255;    Cent.  Dig.  §  1150. 

10  Colly er  v.  Moulton,  9  R.  I.  90,  98  Am.  Dec.  370;  Crawford  v.  Mills- 
paugh,  13  Johns.  (N.  Y.)  87;  Kidder  v.  Kidder,  33  Pa.  268;  Moore  v.  Loco- 
motive Works,  14  Micll.  266;  Maness  v.  Henry,  96  Ala.  454,  11  South.  410; 
Landon  v.  Hutton,  50  N.  J.  Eq.  500,  25  Atl.  953 ;  Davidson  v.  Burke,  143  111. 
139,  32  N.  E.  514,  30  Am.  St  Rep.  367 ;  ante,  p.  16L  See  "Contracts,"  Dec. 
Dig.   (Key-No.)  §  255;   Cent.  Dig.  §  1150. 

11  Foster  v.  Dawber,  6  Exch.  839.  See  "Bills  and  Notes,"  Dec.  Dig.  (Key- 
No.)  §§  US,  43S;    Cent.  Dig.  §§  1277,  1278. 

12  Crawford  v.  Millspaugh,  13  Johns.  (N.  Y.)  87;  Seymour  v.  Minturn,  17 
Johns.  (N.  Y.)  169,  8  Am.  Dec.  3S0 ;  Bragg  v.  Danielson,  141  Mass.  195,  4  N. 
E.  622;  Smith  v.  Bartholomew,  1  Mete.  (Mass.)  276,  25  Am.  Dec.  365;  In  re 
Campbell's  Estate,  7  Pa.  100,  47  Am.  Dec.  503.  See  "Bills  and  Notes,"  Dec. 
Dig.  (Key-No.)  §§  US,  I,S8;   Cent.  Dig.  §§  i?377,  1278. 

13  Larkin  v.  Hardenbrook,  90  N.  Y.  333,  43  Am.  Rep.  176 ;  Slade  v.  Mutrie, 
156  Mass.  19,  30  N.  E.  108;  Vanderbeck  v.  Vanderbeck,  30  N.  J.  Eq.  205; 
Paxton  V.  Wood,  77  N.  C.  11;  In  re  Campbell's  Estate,  7  Pa.  100,  47  Am. 
Dec.  503;  Albert's  Ex'rs  v.  Ziegler's  Ex'rs,  29  Pa.  50;  Stewart  v.  Hidden, 
13  Minn.  43  (Gil.  29)  ;  Ellsworth  v.  Fogg,  35  Vt.  355.  See  "Bills  and  Notes," 
Dec.  Dig.  (Key-No.)  §§  l.',S,  J,38;    Cent.  Dig.  §§  1277,  1278. 

1*  Slade  v.  Mutrie,  156  Mass.  19,  30  N.  E.  168.  See  "Bills  and  Notes."  Dec. 
Dig.  (Key-No.)  §§  l/,3,  J,3S;    Cent.  Dig.  §§  1277,  1278. 


526  DISCHARGE    OF    CONTRACT  (Ch.  11 

The  consent  of  a  party  to  the  rescission  of  a  contract  may  be 
shown  by  evidence  of  his  acts  or  declarations  in  the  same  man- 
ner in  which  the  consent  of  a  party  to  the  original  contract  may 
be  shown  by  conduct.^' 


SAME— SUBSTITUTED  CONTRACT 

233.  A  contract  may  be  discharged  by  the  substitution  of  a  new 

contract/®  and  this  results — 

(a)  Where  a  new  contract  is  expressly  substituted  for  the  old 

one. 

(b)  Where  a  new  contract  is  inconsistent  with  the  old  one. 

(c)  Where  new  terms  are  agreed  upon. 

(d)  Where  a  new  party  is  substituted  for  one  of  the  original 

parties  by  agreement  of  all  three. 

234.  As  in  the  case  of  contracts  generally,  the  agreement  of  the 

parties  may  be  evidenced  by  their  conduct. 

The  difference  between  this  mode  and  a  discharge  by  rescission 
is  that  a  discharge  by  rescission  is  a  total  obliteration  of  the  con- 
tract, while  by  this  mode  a  new  bond  between  the  parties  is 
substituted  in  the  place  of  the  old  one.  A  contract  may  be  thus 
discharged  either  by  the  making  of  an  entirely  new  and  inde- 
pendent contract  relating  to  the  same  subject,  or  merely  by  the 
ii«troduction  of  new  terms.  In  the  latter  case  the  new  contract 
consists  of  the  new  terms  and  so  much  of  the  original  contract 
as  remains  unchanged.  If,  for  instance,  parties  who  have  con- 
tracted for  the  construction  of  a  building  according  to  specifica- 
tions, and  at  a  price,  to  be  paid  partly  in  cash  and  partly  in  some 
other  way,  should  afterwards  agree  upon  a  change  in  the  specifi- 
cations  and    an   increase    in    the    cash   payment,    there    would    be 

15  KELLETT  v.  HOBIE,  99  Wis.  303,  74  N.  W.  781.  Throckmorton  Cas. 
Contracts,  3G3 ;  Hanson  &  Parker  v.  Wittenberg,  205  Mass.  319,  91  N.  E.  383. 
See  "Contracts,"  Dec.  Dig.  {Kcjj-No.)  §  253;   Cent.  Dig.  §§  llIiG-llJ,R. 

16  McCreery  v.  Day,  119  N.  Y.  1,  23  N.  E.  lOS,  6  L.  R.  A.  503,  IG  Am.  St. 
Rep.  793;  Munroe  v.  Perkins,  9  Piclc.  (Mass.)  298,  20  Am.  Dec.  475;  Hurloclv 
V.  Smith,  39  Mfl.  43G;  King  v.  Faist,  IGl  Mass.  449.  37  N.  E.  45G;  Rollins 
V.  Marsh,  128  Mass.  116;  Cutter  v.  Cochrane,  116  Mass.  408;  Farrar  v.  Tul- 
Iver,  88  111.  408 ;  Windham  v.  Doles,  59  Ga.  265 ;  Brown  v.  Everhard,  52  Wis. 
205,  8  N.  W.  725;  Tingley  v.  Land  Co.,  9  Wash.  34,  36  Pac.  1098;  Sioux  City 
Stock-Yards  Co.  v.  Packing  Co.,  110  Iowa,  396,  81  N.  W.  712;  Andre  v.  Graeb- 
ner,  126  Mich.  116,  85  N.  W.  464;  Brown  v.  Lumber  Co.,  117  N.  C.  287,  23 
S.  E.  253;  Dreifus  v.  Exposition  Salvage  Co.,  194  Pa.  475,  45  Atl.  370,  75 
Am.  St.  Rep.  704.  As  to  payment  by  negotiable  instrument,  see  post.  p.  5^0. 
See  "Contracts,"  Dec.  Dig.    (Key-No.)   §  246;    Cent.  Dig.  g§  1131-112S. 


§§    233-234)  BY   AGREEMENT  "  527 

substituted  for  the  original  contract  a  new  contract,  consisting 
of  the  new  terms  and  the  unchanged  terms  of  the  original. ^^ 

A  new  contract  inconsistent  with  the  original  impliedly  dis- 
charges the  latter  without  an  express  provision  to  that  effect;^* 
and,  if  new  terms  are  agreed  upon,  th'ey  will  by  implication  waive 
those  terms  of  the  original  which  are  inconsistent  with  them,  and 
a  new  contract  will  result,  consisting,  as  we  have  seen,  of  the 
new  terms  and  the  unchanged  or  consistent  terms  of  the  original 
contract.^®  An  illustration  is  furnished  by  cases  in  which  a  con- 
tractor undertakes  building  operations  for  another  which  are 
to  be  completed  by  a  certain  time,  in  default  of  which  a  sum  is 
to  be  paid  as  compensation  for  the  delay.  If,  while  the  building 
is  in  progress,  an  agreement  is  made  for  additional  work,  by  which 
it  becomes  impossible  to  complete  the  building  within  the'  time 
stipulated,  it  is  universally  held  that  the  subsequent  agreement  is 
so  far  inconsistent  with  the  first  as  to  amount  to  a  waiver  of  the 
original  stipulation  as  to  time;  and,  since  an  agreement  may  be 
made  by  conduct  as  well  as  by  words,  this  principle  would  apply 
where  performance  within  the  specified  time  is  prevented  by 
the  conduct  of  the  other  party.^° 

Where  it  is  claimed  that  a  contract  has  been  discharged  by  a 
new  contract,  or  by  the  introduction  of  new  terms,  the  intention 
to  discharge  must  distinctly  appear,  to  give  rise  to  such  an  impli- 
cati6n,  from  the  inconsistency  of  the  new  terms  with  the  old 
ones.^^     A  mere  postponement  of  performance  for  the  convenience 

17  Green  v.  Paul,  155  Pa.  126,  25  Atl.  867 ;  Hannibal  H.  Chandler  &  Co. 
V.  Knott,  86  Iowa,  113,  53  N.  W.  88;  McNish  v.  Reynolds,  95  Pa.  4S3.  See 
''Contracts;'  Dec.  Dig.    {Key-No.)  §  245;    Cent.  Dig.  §§  1129,  1130. 

18  Patmore'v.  Colburn,  1  Cromp.  M.  &  R.  65 ;  Renard  v.  Sampson,  12  N.  Y. 
561;  Stow  V.  Russell,  36  111.  18;  Howard  v.  Railroad  Co.,  1  Gill  (Md.)  311; 
Cbrisman  v.  Hodges,  75  Mo.  413 ;  Paul  v.  Meservey,  58  Me.  419 ;  Harrison  v. 
Lodge,  116  111.  279,  5  N.  E.  543;  Domenieo  v.  Association  (D.  C.)  112  Fed. 
5.54,  557.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  2J,5;  Cent.  Dig.  §§  1129, 
1130. 

isTbomhill  v.  Neats,  8  C.  B.  (N,  S.)  831;  Teal  v.  Bilby,  123  U.  S.  572,  8 
Sup.  Ct  239,  31  L.  Ed.  263;  Cornish  v.  Suydam,  99  Ala.  620,  13  South.  118; 
Farrar  v.  Toliver,  88  111.  408;  Rollins  v.  Marsh,  128  Mass.  116;  Rogers  v. 
Rogers,  139  Mass.  440,  1  N.  E.  122;  Housekeeper  Pub.  Co.  v.  Swift,  97  Fed. 
290,  38  C.  C.  A.  187 ;  Myers  v.  Carnahan,  61  W.  Va.  414,  57  S.  E.  134,  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  2.'f5;    Cent.  Dig.  §§  1129,  1130. 

20  Thornhill  v.  Neats,  8  C.  B.  (N.  S.)  831.  And  see  Cornish  v.  Suydara,  99 
Ala.  620,  13  South.  118;  Stewart  v.  Keteltas,  36  N.  Y.  3SS;  Underwood  v. 
Wolf,  131  111.  42.5,  23  N.  E.  598,  19  Am.  St.  Rep.  40;  Howard  v.  Railroad  Co., 
1  Gill  (Md.)  311;  Huckestein  v.  Kelly,  152  Pa.  631,  25  Atl.  747.  See  "Con- 
tracts," Dec.  Dig.   {Key-No.)  §  2//5;    Cent.  Dig.  §§  1129,  1130. 

aiMHlsaps  v.  Bank,  71  Miss.  361,  13  South.  903;    Uhlig  v.  Barnum.  43  Neb. 


528  DISCHARGE    OF    CONTRACT  (Ch.  11 

of  one  of  the  parties,  or  an  agreement  to  accept  performance  at 
a  different  place  than  that  stipulated,  does  not  operate  as  a  dis- 
charge.*^ This  question  sometimes  arises  in  contracts  for  the  sale 
and  delivery  of  goods,  where  the  delivery  is  to  extend  over  some 
time.  The  purchaser  requests  a  postponement  of  delivery,  and 
then  refuses  to  accept  the  goods  at  all,  alleging  that  the  contract 
was  discharged  by  the  alteration  of  the  time  of  performance ;  that 
a  new  contract  was  thereby  substituted,  which  is  void  for  non- 
compliance with  the  statute  of  frauds.  The  courts,  however,  have 
always  recognized  "the  distinction  between  a  substitution  of  one 
agreement  for  another,  and  a  voluntary  forbearance  to  deliver 
at  the  request  of  another,"  "  and  will  not  regard  the  latter  as 
affecting  the  rights  of  the  parties  further  than  this:  that,  if  a 
man  asks  to  have  performance  of  his  contract  postponed,  he  does 
so  at  his  own  risk ;  for,  if  the  market  value  of  the  goods  which 
he  should  have  accepted  at  the  earlier  date  has  altered  at  the  latter 
date,  the  rate  of  damages  may  be  assessed,  as  against  him,  either 
at  the  time  when  the  performance  should  have  taken  place,  or 
when,  by  nonperformance,  the  contract  was  broken,  or  when  he 
ultimately  exhausted  the  patience  of  the  vendor,  and  definitely 
refused  to  perform  the  contract.^* 

Again,  a  contract  may  be  discharged  by  the  introduction  of  new 
parties  into  the  original  agreement,  whereby  a  new  contract  is 
created,  in  which  the  terms  remain  the  same,  but  the  parties'  are 
different.  This  is  termed  a  "novation."  We  have  already  spoken 
of  it  as  an  apparent  exception  to  the  rule  that  the  rights  and 
liabilities  under  a  contract  cannot  be  assigned  at  law.^"^  Such 
a  substitution  may  be  made  (1)  by  express  agreement,  or  (2) 
by  conduct  of  the  parties  indicating  acquiescence  in  a  change  of 
liability.  If,  for  instance,  A.  owes  B.  $100,  and  B.  owes  C.  $100. 
it  may  be  agreed  between  all  three  that  A.  shall  pay  C.  instead 
of  paying  B.,   so  that   B.   thereby   terminates   his  legal   relations 

584,  61  N.  W.  749.     See  "Contracts,"  Dec.  Big.   (Key-No.)  §  2^5;    Cent.  Dig. 
§§  1129,  IISO. 

22  Hickman  v.  Haynes,  L.  R.  10  C.  P.  606;  Lawson  v.  Hogan,  93  N.  Y.  39; 
Watkins  v.  Hodges,  6  Har.  &  J.  (Md.)  38;  Franklin  Fire  Ins.  Co.  v.  Hamill, 
5  Md.  170;  Bacon  v.  Cobb,  45  111.  47;  McCombs  v.  McKennan,  2  Watts  &  S. 
(Pa.)  216,  37  Am.  Dec.  505;  Thomson  v.  Poor,  147  N.  Y.  402,  42  N.  E.  13. 
See  ''Contracts,"  Dec.  Dig.   (Key-No.)  §  2^5;    Cent.  Dig.  §§  1129,  1130. 

23  Hickman  v.  Haynes,  L.  R.  10  C.  P.  606.  See  "Sales,"  Dec.  Dig.  (Key- 
No.)  §§  S9,  90;    Cent.  Dig.  §§  251-253,  259. 

2  4  Anson,  Cont.  (4th  Ed.)  261 ;  Ogle  v.  Earl  Vane,  L.  R.  2  Q.  B.  275,  L.  R. 
3  Q.  B.  272.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §§  S9,  90;  Cent.  Dig.  §§  251- 
253,  259. 

2  5  Ante,  p.  456. 


§§    233-234)  BY    AGREEMENT  529 

with  both  A.  and  C"  The  consideration  for  A.'s  promise  to 
pay  C.  is  the  discharge  of  B.  by  C. ;  the  consideration  of  B.'s 
discharge  of  A.  is  t,he  extinguishment  of  his  debt  to  C. ;  and  the 
consideration  of  C.'s  discharge  of  B.  is  the  promise  of  A.  It 
would  not  be  enough  for  A.  to  say  to  C,  "I  will  pay  you  instead 
of  B.,"  and  to  afterwards  suggest  the  arrangement  to  B.  and 
receive  his  assent  ;^^  nor  would  it  be  enough  for  B.  to  authorize 
A.  in  writing  to  pay  to  C,  and  for  A.  to  acknowledge  the  paper.'" 
All  three  must  enter  into  the  agreement,  and  the  original  liability 
must  be  extinguished.  This  is  essential,  because  it  is  the  promise 
of  each  that  is  the  consideration  for  the  promise  of  the  others.^® 
As  we  have  said,  such  a  substitution  and  discharge  may  arise 
otherwise  than  by  express  agreement;  it  may  arise  from  the 
conduct  of  the  parties  indicating  acquiescence  in  a  change  of 
liability.  If  a  person,  for  instance,  enters  into  a  contract  with 
two  others,  and  the  latter  agree  between  themselves  that  one  of 
them  shall  retire  from  the  contract  and  cease  to  be  liable  upon 
it,  the  first-mentioned  party  may  either  insist  upon  the  continued 
liability  of  the  party  remaining,  or  may  treat  the  contract  as  bro- 
ken and  discharged  by  such  renunciation  of  his  liabilities  by  the 

26  Tatlock  V.  Harris.  3  Term  R.  174 ;  Heaton  v.  Angler,  7  N.  H.  397,  28 
Am.  Dec.  353;  Sterling  v.  Ryan,  72  Wis.  30,  37  N.  W.  572,  7  Am.  St.  Rep. 
818 ;  McKinney  v.  Alvis,  14  111.  33 ;  Litchfield  v.  Garratt,  10  Mich.  426 ;  Mc- 
Clellan  v.  Robe,  93  Ind.  298;  Mulgrew  v.  Cocharen,  96  Mich.  422,  56  N.  W. 
70 ;  Id.,  98  Mich.  532,  57  N.  W.  739 ;  Atwood  v.  Town  of  Mt.  Holly,  65  V t. 
121,  26  Atl.  491 ;  Byrd  v.  Bertrand,  7  Ark.  321 ;  Foster  v.  Paine,  63  Iowa,  85, 
18  N.  W.  699;  Gardner  v.  Caylor,  24  Ind.  App.  521,  56  N.  E.  134;  Minder  & 
Jorgenson  Land  Co.  v.  Brustuen,  26  S.  D.  38,  127  N.  W.  546.  See  "Nova- 
tion:' Dec.  Dig.  (Key-No.)  §  7;    Cent.  Dig.  §  7. 

2  7  Cuxon  V.  Chadley,  3  Barn.  &  C.  591;  Barnes  v.  Insurance  Co.,  56  Minn. 
38,  57  N.  W.  314,  45  Am.  St.  Rep.  438.  See  "Novation:'  Dec.  Dig.  (Key-No.) 
I  7;    Cent.  Dig.  §  7. 

2  8  Llversidge  v.  Broadbent,  4  Hurl.  &  N.  603;  ante,  p.  466.  See  "Nova- 
tion:'  Dec.  Dig.   (Key-No.)   §  7;    Cent.  Dig.  §  7. 

2fl  Liversidge  v.  Broadbent,  4  Hurl.  &  N.  603;  Cuxon  v.  Chadley,  3  Barn,  & 
C.  591 ;  Wood  v.  Moriarty,  16  R.  I.  201,  14  Atl.  855 ;  First  Nat.  Bank  v.  Plall, 
101  U.  S.  50,  25  L.  Ed.  822;  Hard  v.  Burton,  02  Vt.  314,  20  Atl.  2G9;  Spycher 
V.  Werner,  74  Wis.  450,  43  N.  W.  161,  5  L.  R.  A.  414;  McKinney  v.  Alvis,  14 
111.  33;  Smith  v.  Watson.  82  Va.  712,  1  S.  E.  96;  Black  v.  De  Camp,  78  Iowa, 
718,  43  N.  W.  625;  Bowen  v.  Railroad  Co.,  34  S.  C.  217,  13  S.  E.  421;  Ilau- 
bert  V.  Mausshardt,  89  Cal.  433,  26  Pac.  899;  Morrison  v.  Kendall,  6  Ind. 
App.  212,  33  N.  E.  370;  Linneman  v.  Moross'  Estate,  98  Mich.  178,  57  N.  W. 
100,  39  Am.  St.  Rep.  528;  Campbell  v.  Clay,  4  Colo.  App.  551,  36  Pac.  909; 
Butterfield  v.  Hartshorn,  7  N.  H.  345,  26  Am.  Dec.  741 ;  Cornwell  v.  Megins, 
39  Minn.  407,  40  N.  W.  610;  Levy  v.  Ford,  41  La.  Ann.  873,  6  South.  671.  Cf. 
Clough  V.  Giles,  64  N.  H.  73,  5  Atl.  835;  Wolters  v.  Thomas  (Cal.)  32  Pac. 
505;  Casey  v.  Miller,  3  Idaho  (Hash.)  507,  32  Pac.  195.  See  "Novation:' 
Dec.  Dig.  (Key-No.)  §  S;  Cent.  Dig.  i  S;  "Contracts"  Cent.  Dig.  {  256. 
Clabk  Cont.(3d  Ed.) — 34 


530  DISCHARGE    OF    CONTRACT  (Ch.  11 

party  so  attempting  to  withdraw.  If,  however,  under  some  cir- 
cumstances, the  first-mentioned  party,  after  he  becom.es  aware 
of  the  retirement  of  one  of  the  other  parties,  continues  to  deal 
with  the  remaining  party  as  though  no  change  has  taken  place, 
he  acquiesces,  and  may  be  considered  to  have  entered  into  a  new 
contract  to  accept  the  sole  liability  of  the  party  so  remaining,  and 
cannot  hold  the  other  to  his  original  contract.  Cases  of  this  sort 
arise  where  a  member  retires  from  a  partnership,  after  the  firm 
has  entered  into  a  contract,  and  it  is  subsequently  sought  to  hold 
him  liable  thereon.  "I  apprehend  the  law  to  be  now  settled,"  said 
Parke,  B.,  "that  if  one  partner  goes  out  of  a  firm,  and  another 
comes  in,  the  debts  of  the  old  firm  may,  by  the  consent  of  all  the 
three  parties — the  creditor,  the  old  firm,  and  the  new  firm — be 
transferred  to  the  new  firm."  ***  Moreover,  a  retired  partner  may 
be  discharged  by  the  creditor's  adoption  of  the  other  partners 
as  his  sole  debtors,  although  no  new  partner  has  been  introduced 
into  the  firm.^^  An  agreement  to  discharge  a  retired  partner,  and 
look  only  to  a  continuing  partner,  is  not  inoperative  for  want  of 
consideration.^*  And  when  the  new  firm  agrees  to  assume  the 
liabilities  of  the  old,  slight  circumstances  will  support  an  infer- 
ence of  assent  on  the  part  of  a  creditor  who  had  notice  of  the 
dissolution  to  a  novation. ^^ 

In  order  that  a  contract  may  be  discharged  in  whole  or  in  part 
by  a  subsequent  agreement  the  latter  must  be  supported  by  a 
consideration.**     Such   a  consideration   may   consist,  however,   in 

8  0  Hart  V.  Alexander,  2  Mees.  &  W.  484.  And  see  Ludington  v.  Bell,  77 
N.  T.  138,  33  Am.  Rep.  601 ;  Filiplni  v.  Stead,  4  Misc.  Rep.  405,  23  N.  Y. 
Supp.  1061.  Cf.  Ayer  v.  Kilner,  148  Mass.  4&S,  20  N.  E.  16.3.  But  see  Wad- 
hams  V.  Page,  1  Wash.  420,  25  Pac.  462;  Id.,  6  Wash.  103,  32  Pac.  1068; 
Campbell  v.  Floyd,  153  Pa.  84,  25  Atl.  1033.  Where  a  creditor  of  a  partner- 
ship, after  dissolution,  accepts  the  note  of  some  of  the  partners  in  payment 
of  the  firm  debt,  intending  that  it  shall  satisfy  the  original  obligation,  the 
other  partner  is  discharged.  Waydell  y.  Luer,  3  Denio  (N.  Y.)  410;  Millerd 
V.  Thorn,  56  N.  Y.  402 ;  Ludington  v.  Bell,  supra ;  Powell  v.  Blow,  34  Mo. 
485;  Stone  v.  Chamberlin,  20  Ga.  259;  Maxwell  v.  Day,  45  Ind.  509.  But 
not  if  there  is  no  such  intention.  Post.  p.  547.  note  2.  See  "I'artnership" 
Dec.  Dig.   (Key-No.)  §§  2.36-238;    Cent.  Dig.  §§  m-i9i. 

31  York  V.  Orton,  65  Wis.  6,  26  N.  W.  166.  See  "Partnership,"  Dec.  Dig. 
(Key-No.)  §  2S6;   Cent.  Dig.  §§  J,SJi-4S6. 

3  2  Thompson  v.  Percival,  5  Barn.  &  Ad.  925;  Backus  v.  Fobes.  20  N.  Y. 
204;  Collyer  v.  Moulton,  9  R.  I.  90,  98  Am.  Dec.  370.  See  "Partnership," 
Dec.  Dig.  (Key-No.)  §  236;    Cent.  Dig.  §§  JiSIt-J,S6. 

3  3  Regester  v.  Dodge  (C.  C.)  6  Fed.  6;  Shaw  v.  McGregory,  105  Mass.  96; 
Tysen  v.  Somerville.  35  Fla.  219,  17  South.  507.  See  "Po/rtnership,"  Dec. 
Dig.  (Key-No.)   §  239;    Cent.  Dig.  §§  487-499. 

84  Whitsett  V.  Carney  (Tex.  Civ.  App.)  124  S.  W.  443.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  2S7;    Cent.  Dig.  §§  1119-1122. 


§    235)  BY   AGREEMENT  531 

a  change  of  the  rights  and  liabilities  of  the  parties  and  the  con- 
sequent extinction  of  those  which  before  existed. ^^  On  principle, 
it  would  seem  that,  if  a  person  should  refuse  to  perform  a  con- 
tract simply  because  he  would  suffer  a  loss  by  performing,  a 
promise  by  the  other  party  to  pay  him  more,  or  to  accept  less, 
than  originally  agreed  upon,  to  induce  him  to  go  on  with  the 
contract,  would  be  without  consideration.  We  have  already  seen 
that  on  this  question  the  authorities  are  not  in  accord.** 


SAME— FORM    OF    DISCHARGE   BY   NEW   AGREEMENT 

235.  The  general  rule  is  that  a  contract  must  be  discharged  in  the 
same  form  as  that  in  which  it  was  made.    Therefore: 

(a)  A  contract  under  seal  can  only  be  discharged  by  agreement, 

where  the  agreement  is  under  seal;  but  by  the  weight  of 
authority,  in  this  country,  at  least,  the  rule  does  not  apply 
where  a  parol  contract  rescinding  or  modifying  a  contract 
under  seal  has  been  acted  upon,  so  that  it  would  be  inequi- 
table to  hold  the  parties  to  their  original  contract. 

(b)  A  simple  contract  may  be  discharged  by  writing  or  by  word 

of  mouth,  whether  or  not  the  original  contract  is  in  writ- 
ing, except  that — 

EXCEPTION — Where  the  original  written  contract  was  within 
the  statute  of  frauds,  though  an  absolute  discharge  by 
rescission  may  take  place  by  word  of  mouth,  a  discharge 
by  substituted  agreement  must,  by  the  weight  of  author- 
ity, be  in  writing. 

The  general  rule  of  the  common  law  being  that  a  contract  can 
only  be  discharged  in  the  same  form  as  that  in  which  it  was 
made,  it  follows  that  an  agreement,  to  operate  as  a  discharge  or 
modification  of  a  previous  contract  under  seal,  must  also  be  under 
seal.  The  parties  to  a  deed  cannot,  at  common  law,  discharge' 
their  obligation  by  a  parol  agreement.*^  This  rule  is,  however, 
subject  to  some  qualifications  or  exceptions. 

3  5  Welch  V.  Mischke.  154  Mo.  App.  728,  136  S.  W.  36.  And  see  note  16, 
supra.     See  "Contracts,"  Dec.  Dig.  (Kcy-^o.)  §  237;   Cent.  Dig.  §§  1119-1122. 

3  9  Ante,  pi  158, 

8T  Sijence  v.  Healey,  8  Ex.  G6S;  West  v.  Blakeway,  2  Man.  &  G.  729;  Allen 
V.  Jaquish,  21  Wend.  (N.  Y.)  028;  Thompson  v.  Brown,  7  Taunt  656;  Spence 
T.  Healey,  8  Exch.  GG8 ;  Cordwert  v.  Hunt,  8  Taunt.  596 ;  Woodruff  v.  Dob- 
bins, 7  Blackf.  (Ind.)  582;  Ho!,'encamp  v.  Ackermun,  24  N.  J.  Law,  133;  Me- 
Murphy  v.  Garland,  47  N.  H.  316;  Leavitt  v.  Stern,  159  111.  520,  42  N.  E.  809. 
See  "Contracts,"  Dec.  Dig.  {Key-No.)  i  23S;   Cent.  Dig.  §§  1117,  1123. 


532  DISCHARGE    OP    CONTRACT  (Ch.  11 

In  the  first  place,  it  is  possible  for  them  to  make  a  parol  contract 
which  creates  obligations  separate  from,  and  yet  substantially  at 
variance  with,  the  deed,  so  that  it  in  effect  contravenes  the  terms 
of  the  deed,  and  gives  a  right  of  action  to  which  the  deed  fur- 
nishes no  answer.  In  a  case  illustrative  of  this  point  a  person 
had  let  rooms  to  another,  by  contract  under  seal,  for  a  certain 
time,  at  a  rent  to  be  ascertained  in  a  certain  way,  and  after  his 
death  his  administrator  entered  into  a  parol  agreement  with  the 
lessee  by  which,  in  consideration  of  a  certain  sum  to  be  paid  by 
the  lessee,  to  be  taken  as  a  reasonable  rent,  neither  party  should 
be  called  upon  to  perform  his  part  under  the  deed.  The  lessee 
failed  to  make  the  payment  so  agreed  upon,  and  the  adminis- 
trator sued  him  upon  the  parol  contract.  The  lessee  contended 
that  the  parol  contract  was  an  attempt  to  vary  the  deed  by  an 
instrument  not  under  seal,  and  that  a  performance  of  this  con- 
tract, being  no  discharge  of  the  deed,  would  leave  him  liable  to 
his  obligation  under  the  deed.  The  court  held,  however,  that  the 
parol  contract  created  a  new  obligation;  and  that  a  performance 
of  this  new  contract  would  furnish  an  equitable  answer  to  an 
action  on  the  contract  under  seal ;  and  that  the  administrator  was 
entitled  to  sue  on  the  parol  contract.^® 

Again,  where  the  obligee  does  something  to  prevent  performance 

by  the  obligor,  as  where  he  orally  consents  to  an  extension  of 

•the  time  for  performance,  and  the  oral  waiver  is  acted  upon,  when 

he  sues  the  obligor  for  nonperformance,  he  cannot  object  to  parol 

evidence  of  his  conduct.'® 

There  is  an  exception  very  generally  recognized  in  this  country, 
though  not  in  England,  it  seems.*"  The  cases  are  not  very  clear 
as  to  the  limits  of  this  exception,  but  they  seem  to  establish  the 
rule  that  where  a  contract  under  seal  has  been  rescinded  or  modi- 
fied by  a  subsequent  parol  agreement,  and  this  agreement  has 
been  acted  upon  by  the  parties,  and  they  have  changed  their  sit- 
uation so  that  it  would  be  inequitable  to  hold  them  to  the  original 
contract,  the  parol  agreement  may  be  shown  ;*^  and  this  rule  is 

•  •Nash  T.  Armstrong,  10  C.  B.  (N.  S.)  259.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  258;    Cent.  Dig.  §§  1111,  1123. 

8»  Fleming  v.  Gilbert,  3  Johns.  (N.  Y.)  528;  Nicholas  v.  Austin,  82  Va.  817, 
1  S.  E.  132;  Franklin  Fire  Ins.  Co.  of  Philadelphia  v.  Hamill,  5  Md.  170; 
Baltimore  Fire  Ins.  Co.  v,  McGowan,  16  Md.  47 ;  Lawrence  v.  Miller,  86  N. 
Y.  131.     See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  238;   Cent.  Dig.  §§  1117,  1123. 

*•  The  rule  is  recognized  in  equity.  Steeds  v.  Steeds,  22  Q.  B.  Div.  537. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  239;   Cent.  Dig.  §  112^. 

*i  Becker  v.  Becker,  250  lU.  117,  95  N.  E.  70,  Ann.  Cas.  1912B,  275,  See 
"Contracts,"  Dec.  Dig.  (Key-No.)  §  239;    Cent.  Dig.  §  112^. 


§    235)  BY   AGREEMENT  533 

recognized  at  law  as  well  as  in  equity.*'  Though  the  language  of 
most  of  the  opinions  in  these  cases  is  as  broad  as  the  rule  stated, 
it  will  "be  found  that  some  of  them  will  fall  within  one  or  the 
other  of  the  qualifications  of  the  rule  mentioned  above. 

A  parol  or  simple  contract  may  be  discharged  by  writing  or  by 
word  of  mouth.  It  is  immaterial  that  the  origmal  contract  is 
in  writing,  for,  as  we  have  seen,  the  writing  is  not  the  agreement, 
but  the  evidence  of  the  agreement  only.*^  There  is  an  exception 
in  cases  where  the  original  agreement  was  required  by  the  stat- 
ute of  frauds  to  be  in  writing.  .  In  such  a  case  an  absolute  dis- 
charge might  probably  take  place  by  word  of  mouth.**  If,  how- 
ever, the  discharge  is  not  a  simple  rescission,  but  is  by  substitution 
of  a  new  contract,  either  by  express  provision,  or  by  implication 

42  Mckenzie  v.  Harrison,  120  n.  y.  260,  24  n.  e.  458,  8  l.  r.  a.  2.57, 

17  Am.  St.  Rep.  638,  Throckmorton  Cas.  Contracts,  365;  Chesapeake  &  O. 
Canal  Co.  v.  Ray,  101  U.  S.  522,  25  L.  Ed.  792;  McCreery  v.  Day,  119  N.  Y. 
1,  23  N.  E.  198,  6  L.  R.  A.  503,  16  Am.  St.  Rep.  793 ;  Le  Fevre  v.  Le  Fevre, 
4  Serg.  &  R.  (Pa.)  241,  8  Am.  Dec.  696;  Phelps  v.  Seely,  22  Grat.  (Va.)  573; 
Munroe  v.  Perkins,  9  Pick.  (Mass.)  298,  20  Am.  Dec.  475;  Van  Syckel  v. 
O'Hearn,  50  N.  J.  Eq.  173,  24  Atl.  1024;  White  v.  Walker,  31  111.  422;  Law- 
rence V.  Dole,  11  Vt  549;  Hydeville  Co.  v.  Slate  Co.,  44  Vt.  395;  Green  v. 
Wells,  2  Cal.  584;  Hastings  v.  Lovejoy,  140  Mass.  261,  2  N.  E.  776,  54  Am. 
Rep.  462 ;  Herzog  v.  Sawyer,  61  Md.  344 ;  Dickerson  v.  Commissioners,  6 
Ind.  128,  63  Am.  Dec.  373 ;  Thomson  v.  Poor,  147  N.  Y.  402,  42  N.  E.  13.  See, 
also,  Palmer  v.  Meriden  Britannia  Co.,  188  111.  508,  59  N.  E.  247.  See  "Con- 
tracts," Dec.  Dig.    {Key-No.)   §  2S9;  Cent.  Dig.  §  1124. 

•4  3  G OSS  V.  Nugent,  5  Barn.  &  Adol.  65;  Brown  v.  Everhard.  52  Wis.  205, 
8  N.  W.  725;  Swain  v.  Seamens,  9  Wall.  254,  19  L.  Ed.  554;  Blagborne  v. 
Hunger,  101  Mich.  375.  59  N.  W.  657 ;  McNish  v.  Reynolds,  95  Pa.  483 ;  Allen 
V.  Sowerby,  37  Md.  410;  Wiggin  v.  Goodwin,  63  Me.  3S9 ;  Aldrich  v.  Price, 
57  Iowa,  151,  9  N.  W.  376,  10  N.  W.  3.39;  Utley  v.  Donaldson,  94  U.  S.  29, 
24  L.  Ed.  54;  Teal  v.  Bilby,  123  U.  S.  572,  8  Sup.  Ct.  239,  31  L.  Ed.  203; 
Flanders  v.  Fay,  40  Vt.  310;  Robinson  v.  Batchelder,  4  N.  H.  40;  Thurston 
V.  Ludwig,  6  Ohio  St.  1,  67  Am.  Dec.  328;  Deshazo  v,  Lewis,  5  Stew.  &  P. 
<Ala.)  91,  24  Am.  Dec.  769;  Low  v.  Forbes,  18  111.  568;  Jones  v.  Grantham, 
80  Ga.  472,  5  S.  E.  764;  Lewis  v.  Say,  151  N.  C.  168,  65  S.  E.  907;  Robinson 
V.  Horner,  176  Ind.  226,  95  N.  E.  561 ;  Smith-Wogan  Hardware  &  Implement 
Co.  V.  Jos.  W.  Moon  Buggy  Co.,  26  Okl.  161,  108  Pac.  1103.  Contra:  Her- 
reshoff  v.  Misch,  21  R.  I.  524,  45  Atl.  145  (cannot  be  varied).  Contra,  by 
statute,  in  some  states,  where  the  oral  agreement  is  unexecuted.  Benson  v. 
Shotwell,  103  Cal.  163,  37  Pac.  147;  Mettel  v.  Gales,  12  S.  D.  632,  82  N.  W. 
181.  See.  also,  ante,  pp,  ^90,  492.  Even  a  provision  that  no  modifications 
shall  be  made  e.xcept  in  writing,  may  be  changed  by  parol.  A.  J.  Anderson 
Electric  Co.  v.  Lighting  Co.  (Tex.  Civ.  App.)  27  S.  W.  504.  See  "Contracts:' 
Dec.  Dig.   (Key-No.)  §  238;    Cent.  Dig.  §§  1117,  1123. 

**  Gorman  v.  Salisbury,  1  Vern.  240;  Wulschner  v.  Ward,  115  Ind.  219,  17 
N.  E.  273;  Hurley  v.  Schring,  62  Hun,  621,  17  N.  Y.  Supp.  7;  Buel  v.  Miller, 
4  N.  H.  190.  As  to  novation,  see  ante,  p.  84.  See  "Contracts,"  Dec.  Dltj. 
{Key-No.)  §  238;    Cent.  Dig.  §$  1111,  1123. 


534  DISCHARGE    OF    CONTRACT  (Ch.  11 

because  of  inconsistency  between  it  and  the  original,  the  better 
opinion  requires  a  writing.  The  new  contract,  resting  in  parol., 
would  be  unenforceable  for  noncompliance  with  the  statute,  and 
could  not  discharge  the  original  contract.***  There  are  some  cases 
in  conflict  with  this  statement.'*®  Parol  evidence  is  admissible, 
however,  to  prove  substantial  performance  when  the  performance 
is  completed  and  accepted,  and  such  performance  is  a  defense  by 
way  of  accord  and  satisfaction.*' 


SAME— PROVISIONS   FOR  DISCHARGE  CONTAINED  IN 
THE   CONTRACT— CONDITIONS   SUBSEQUENT 

236.  A  contract  may  contain  within  itself  express  or  implied  provi- 
sions for  its  determination  under  certain  circumstances. 
These  provisions  are  conditions  subsequent.  Such  a  dis- 
charge may  take  place  by  reason  of — 

(a)  The  nonfulfillment  of  a  specified  term  of  the  contract. 

(b)  The  occurrence  of  a  particular  event. 

(c)  The  exercise  by  one  of  the  parties  of  an  option  to  determine 

the  contract,  the  option  being  given  either — 

(1)  By  express  provision  in  the  contract,  or 

(2)  By  a  custom  or  usage  forming  part  of  the  contract.*' 

46  Noble  V.  Ward,  L.  R.  2  Exch.  135;  Goss  v.  Lord  Nugent,  5  Bam.  &  Adol. 
58;  Burns  v.  Real-Estate  Co.,  52  Minn.  31,  53  N.  W.  1017;  Hill  v.  Blake,  9T 
N.  Y.  216;  Hickman  v.  Haynes,  L.  R.  10  C.  P.  598;  Blood  v.  Goodrich,  9 
Wend.  (N,  Y.)  68,  24  Am.  Dec.  121;  Dana  v.  Hancock,  30  Vt.  616;  Abell  v. 
Munson,  18  Mich.  306,  100  Am.  Dec.  165 ;  Musselraan  v.  Stoner,  31  Pa.  265 ; 
Wilson's  Assignee  v.  Beam  (Ky.)  14  S.  W.  362;  Carpenter  v.  Galloway,  73 
Ind.  418 ;  Rucker  v.  Harrington,  52  INIo.  App.  481 ;  Augusta  Southern  R.  Co. 
V.  Smith  &  Kilby  Co.,  106  Ga.  864,  33  S.  E.  28.  See  ''Contracts,"  Dec.  Dig. 
{Key-No.)  §  238;   Cent.  Dig.  §§  1117,  1123. 

4  6  Stearns  v.  Hall,  9  Cush.  (Mass.)  31;  Cummlngs  v.  Arnold,  3  Mete. 
(Mass.)  480,  37  Am.  Dec.  155;  Negley  v.  Jeffers,  28  Ohio  St.  90;  Lee  v. 
Hawks,  68  Miss.  609,  9  South.  828,  13  L.  R.  A.  633 ;  McClelland  v.  Rush,  150 
Pa.  57,  24  Atl.  354.  And  see  Houston  v.  Sledge,  101  N.  C.  640,  8  S.  E.  145, 
2  L.  R.  A.  487 ;  Johnston  v.  Trask.  116  N.  Y.  130.  22  N.  E.  377,  5  L.  R.  A. 
630,  15  Am.  St.  Rep.  394 ;  Blanchard  v.  Trim,  38  N.  Y.  225 ;  Browne,  St. 
Frauds,  §  411 ;  2  Reed,  St.  Frauds.  §  458.  See  ''Contracts,"  Deo.  Dig.  (Key- 
No.)  §  238;   Cent.  Dig.  §§  1117,  1123. 

47  Moore  v.  Campbell,  10  Exch.  323,  per  Parke,  B. ;  Leather  Cloth  Co.  v. 
Hieronimus,  L.  R.  10  Q.  B.  140;  Long  v.  Hartwell,  34  N.  J.  Law,  116,  127; 
Ladd  V.  King,  1  R.  L  224,  231,  51  Am.  Dec.  624;  Swain  v.  Seamens,  9  Wall. 
254,  19  L.  Ed.  554.  See  "Evidence,"  Dec.  Dig.  (Key-No.)  §  465;  Cent.  Dig. 
§§  1784,  1SD9,  2044,  2065. 

4s  Anson,  Cont.  (4th  Ed.)  263-267. 


§    236)  BY   AGREEMENT  535 

Discharge  on  N onfulRllment  of  Term 

In  the  first  of  these  three  cases — that  in  which  the  nonfulfillment 
of  a  specified  term  of  the  contract  gives  to  one  of  the  parties  the 
option  of  treating  the  contract  as  discharged — we  seem  to  be 
approaching  very  near  to  the  subject  of  the  discharge  of  contract 
by  breach,  for  this,  to,  may  arise  from  the  nonfulfillment  of  a  term 
which  the  parties  consider  to  be  vital  to  the  contract.  There  is, 
however,  this  difference  between  a  nonfulfillment  contemplated  by 
the  parties,  the  occurrence  of  which  shall,  it  is  agreed,  make  the  con- 
tract determinable  at  the  option  of  one,  and  a  breach,  or  nonfulfill- 
ment not  contemplated  or  provided  for  by  the  parties.  In  the  former 
case  the  parties  have,  while  in  the  latter  they  have  not,  looked  be- 
yond the  immediate  objects  of  the  contract.  In  the  former  case  the 
default  which  is  to  constitute  a  discharge  is  specified  by  the  agree- 
ment of  the  parties,  while  in  the  latter  it  must  always  b€  a  question 
of  fact  or  of  construction  whether  or  not  the  default  was  in  a  matter 
vital  to  the  contract,  so  as  to  operate  as  a  discharge  by  breach. 
An  illustration  of  this  mode  of  discharge  is  afforded  where  a 
chattel  is  sold  with  the  understanding  that  it  may  be  returned 
if  it  is  not  satisfactory,  or  does  not  answer  the  description  given 
by  the  seller.  In  a  leading  case  on  this  point,  a  horse  had  been 
sold  under  a  contract  by  which  it  was  stipulated  that,  if  it  did 
not  comply  with  a  certain  warranty,  the  buyer  might  return  it 
by  a  specified  time.  It  did  not  comply  with  the  warranty,  and  was 
returned  within  the  time,  but  the  seller  refused  to  accept  it,  be- 
cause it  had  been  injured,  though  by  no  fault  of  the  buyer.  It 
was  held  that  the  buyer  was  entitled  to  return  it,  "The  effect  of 
the  contract,"  it  was  said,  "was  to  vest  the  property  in  the  buyer 
subject  to  a  right  of  rescission  in  a  particular  event,  when  it 
would  revest  in  the  seller."  *° 

So,  where  a  servant  is  employed  for  a  specified  time  to  work 
to  the  master's  satisfaction,   the   master  may   have   the   right   to 

♦  9  Head  V.  Tattersall,  L.  R.  7  Exch.  7.  14.  And  see  RAY  v.  THOMPSON, 
12  Cush.  (Mass.)  281,  59  Am.  Dec.  187,  Throckmorton  Cas.  Contracts,  309; 
Kimball  &  Austin  Mfg.  Co.  v.  Vroman,  .35  Mich.  310,  24  Am.  Rep.  558;  Bus- 
well  V.  Bicknell,  17  Me.  344,  35  Am.  Dec.  202;  Schlesinger  v.  Stratton,  9 
R.  I.  578;  McKiuney  v.  Bradlee,  117  Mass.  321;  Robinson  v.  Fairbanks,  81 
Ala,  132,  1  South.  552.  Cf.  Sturm  v.  Bokcr,  150  U.  S.  312,  14  Sup.  Ct.  99, 
.33  L.  Ed.  1093.  It  is  otherwise  where  the  Injury  is  caused  by  the  fault  of 
the  purchaser.  RAY  v.  THOMPSON,  12  Cush.  (Mass.)  28J,  50  Am.  Dec.  187, 
Throckmorton  Cas.  Contracts,  309.  If  no  time  is  sijccified  within  which  the 
option  to  rescind  must  be  exercised,  a  reasonable  time  Is  implied.  Quinn  v. 
Stout,  31  Mo.  100;  Hickman  v,  Shimp,  109  Pa,  10;  Washington  v,  Johnson, 
7  Humph.  (Tenn.)  408,  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  267;  Cent.  Dig. 
§§  811-816. 


536  DISCHARGE    OF    CONTRACT  (Ch.  11 

discharge  him  when  he  becomes,  in  good  faith,  dissatisfied  with 
him/" 

The  law,  however,  does  not  favor  forfeitures,  nor  does  it  incline 
to  such  construction  of  a  doubtful  contract  as  will  terminate  the 
rights  of  one  of  the  parties  under  it.  As  said  in  a  recent  Texas 
case:"^  "To  constitute  a  condition  subsequent  upon  which  a  for- 
feiture may  be  declared  because  of  a  failure  of  its  performance, 
the  language  must  be  clear  and  the  condition  must  be  created  by 
express  terms,  or  by  clear  implication,  and  it  must  be  strictly 
construed." 

Occurrence  of  Specified  Event 

The  parties  may  introduce  into  the  terms  of  their  contract  a 
provision  that  the  fulfillment  of  a  condition,  or  the  occurrence  of 
an  event,  shall  discharge  them  both  from  further  liabilities  under 
the  contract.  Such  a  condition  subsequent  is  well  illustrated  by 
the  case  of  a  bond,  which  is  a  promise  subject  to,  or  defeasible 
upon,  a  condition  expressed  in  the  bond.  Another  illustration 
is  in  case  of  the  excepted  risks  in  a  charter  party.  In  a  contract 
of  that  nature  the  shipowner  agrees  with  the  charterer  to  make 
the  voyage  on  the  terms  expressed  in  the  contract,  the  act  of 
God,  public  enemies,  fire,  collision,  and  other  dangers  of  the  seas,, 
etc.,  excepted.  The  occurrence  of  such  an  excepted  risk  releases 
the  shipowner  from  the  strict  performance  of  the  contract;  and 
if  it  should  take  place  while  the  contract  is  wholly  executory,  and 
frustrate  the  entire  enterprise,  the  parties  are  altogether  dis- 
charged." Another  illustration  of  such  conditions  is  found  in 
contracts  with  common  carriers.  Bills  of  lading  generally  contain 
exceptions  by  which  the  liability  of  the  carrier  to  deliver  the 
goods  is  to  cease  if  their  loss  or  destruction  is  caused  by  certain 

0  0  Beissel  v.  Vermillion  Farmers'  Elevator  Co.,  102  Minn.  229,  113  N.  W. 
575,  12  L.  R.  A.  (N.  S.)  403  and  note;  Mackenzie  v.  Minis,  132  Ga.  323,  63 
S.  E.  900,  23  L.  R.  A.  (N.  S.)  1003,  16  Ann.  Cas.  723 ;  Frary  v.  Rubber  Co., 
52  Minn.  264,  53  N.  W.  1156,  18  L.  R.  A.  644 ;  Koehler  v.  Buhl,  94  Mich.  496, 
54  N.  W.  157 ;  Allen  v.  Compress  Co.,  101  Ala.  574,  14  South.  362 ;  Magee  v. 
Lumber  Co.,  78  Minn.  11,  80  N.  W.  781 ;  Gwynne  v.  Hitehner,  66  N.  J.  Law, 
97,  48  Atl.  571 ;  Id.,  67  N.  J.  Law,  654,  52  Atl.  997 ;  Kendall  v.  West,  196  111. 
221,  63  N.  E.  683,  89  Am.  St.  Rep.  317.  And  see  Crawford  v.  Publishing  Co., 
163  N.  Y.  404,  57  N.  E.  616 ;  post,  p.  54L  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  282;  Cent.  Dig.  §§  1281,-1289;  "Master  and  Servant;'  Dec.  Dig.  {Key- 
No.)  §  21;   Cent.  Dig.  §§  20,  21. 

51  South  Texas  Telephone  Co.  v.  Huntington,  104  Tex.  350,  136  S.  W.  1053, 
138  S.  W.  381.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §  27S;  Cent.  Dig.  §§ 
1233-12^8. 

B2Geipel  v.  Smith,  L.  R.  7  Q.  B.  404;  Graves  v.  The  Calvin  S.  Edwards, 
1  C.  C.  A.  533,  50  Fed.  477.  See  "Contracts,"  Dec^  Dig.  (Key-No.)  §§  228^ 
218;   Cent.  Dig.  §§  1033-1037,  1207-1213. 


§    236)  BY   AGREEMENT  537 

perils.*'  A  common  carrier  is  said  to  warrant  or  insure  the  safe 
delivery  of  goods  intrusted  to  him,  but  his  promise,  even  without 
express  stipulation,  is  defeasible  upon  the  occurrence  of  certain 
excepted  risks,  such  as  the  act  of  God  ^*  and  injuries  arising  from 
defects  inherent  in  the  thing  carried."  This  limitation  of  liability 
is  implied  in  every  contract  with  a  common  carrier,  and  the 
occurrence  of  the  risks  exonerates  him  from  liability  for  loss  in- 
curred through  their  agency."*® 

Discharge  Optional  with  Notice 

Again,  a  continuing  contract  may  contain  a  provision  making 
it  determinable  at  the  option  of  one  of  the  parties,  upon  certain 
terms,"  Whether,  for  instance,  a  contract  of  employment  pro- 
's s  Storer  v.  Gordon,  3  Maule  &  S.  308;  Southern  Exp.  Co.  v.  Glenn,  16  Lea 
(Tenn.)  472,  1  S.  W.  102;  Haas  v.  Railroad  Co.,  81  Ga.  792,  7  S.  E.  629; 
Slater  v.  Railroad  Co.,  29  S.  C.  96,  6  S.  E.  936;  Norris  v.  Railway  Co.,  23 
Fla.  182,  1  South.  475,  11  Am.  St.  Rep.  355.  See  "Carriers,"  Dec.  Dig.  (Key- 
No.)   §  112;    Cent.  Dig.  §§  480-485. 

5  4  "By  the  act  of  God,  is  meant  any  accident  produced  by  physical  causes 
which  are  irresistible;  such  as  lightning,  storms,  perils  of  the  sea,  earth- 
quakes, inundations,  sudden  death,  or  illness.  The  act  of  God  excludes  all 
idea  of  human  agency."  Fish  v.  Chapman,  2  Ga.  349,  46  Am.  Dec.  393 ;  Mc- 
Arthur  v.  Sears,  21  Wend.  (N.  Y.)  190.  Some  courts,  however,  have  used  the 
term  as  synonymous  with  "inevitable  accident."  Neal  v.  Saunderson,  2 
Smedes  &  M.  (Miss.)  572,  41  Am.  Dec.  609;  Blythe  v.  Railroad  Co.,  15  Colo. 
333,  25  Pac  702,  11  L.  R.  A.  615,  22  Am.  St.  Rep.  403 ;  Crosby  v.  Fitch,  12 
Conn.  410,  419,  31  Am.  Dec.  745;  Walpole  v.  Bridges,  5  Blackf.  (Ind.)  222. 
In  an  English  case  the  court  of  common  pleas  held  that,  to  constitute  the 
"act  of  God,"  a  loss  must  arise  from  "such  a  direct  and  violent  and  sudden 
and  irresistible  act  of  nature"  as  could  not  be  foreseen,  or,  if  foreseen,  pre- 
vented. Nugent  V.  Smith,  1  C.  P.  Div.  19.  And  see  The  Niagara  v.  Cordes, 
21  How,  7,  16  L.  Ed.  41.  The  court  of  appeal  reversed  the  decision,  and  held 
that  "it  is  not  necessary  to  prove  that  it  was  absolutely  impossible  for  the 
carrier  to  prevent  it ;  but  that  it  is  sufficient  to  prove  that  by  no  reasonable 
precaution  under  the  circumstances  could  it  have  been  prevented."  Nugent 
V.  Smith,  1  C.  P.  Div.  441.  See,  also,  Memphis  &  C.  R.  Co.  v.  Reeves,  10 
Wall.  176,  19  L.  Ed.  909;  Nashville  &  C.  R.  Co.  v.  David,  6  Heisk.  (Tenn.) 
261,  19  Am.  Rep.  594;  Palmer  v.  Railroad  Co,,  101  Cal.  187,  35  Pac.  630; 
Morrison  v.  Davis,  20  Pa.  171,  57  Am.  Dec.  695.  See  "Contracts,"  Dec.  Dig. 
{Key-'So.)  §  119;    Cent.  Dig.  §§  523-530. 

5  5  Clarke  v.  Railroad  Co.,  14  N.  Y.  570,  67  Am.  Dec.  205;  Penn  v.  Rail- 
road Co..  49  N.  Y.  204,  10  Am.  Rep.  355;  Cragin  v.  Railroad  Co.,  51  N.  Y.  61, 
10  Am.  Rep.  559;  Smith  v.  Railroad  Co.,  12  Allen  (Mass.)  531,  90  Am.  Dec. 
106;  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough,  21  Mich.  165,  4  Am.  Rep. 
466;  Evans  v.  Railroad  Co.,  Ill  Mass,  142,  15  Am.  Rep.  19;  Lindsley  v.  Rail- 
road Co.,  36  Minn.  539,  33  N.  W.  7,  1  Am.  St.  Rep.  692.  See  "Carriets,"  Dec. 
Dig.   (jrei/-A'o.)   §§  120,  149V2;    Cent.  Dig.  §§  J,86,  651-662. 

5«  Nugent  V,  Smith,  1  C.  P.  Div.  423.  See  "Carriers,"  Deo.  Dig.  (Key-No.) 
i  120;    Cent.  Dig.  §  486. 

»T  Morrissey  v.  Broomal,  37  Neb.  766,  56  N.  W.  383  ;    Bour  v.  Kimball,  46 


538  DISCHARGE    OF    CONTRACT  (Ch.  11 

vides  that  it  may  be  terminated  by  either  party  on  giving  a  month's 
notice,  and  the  servant  or  agent  is  dismissed  on  a  month's  notice, 
the  contract  is  discharged  and  not  broken.^*  Such  terms  may 
be  incorporated  in  contracts  by  usage. ^®  If  a  continuous  contract 
fixes  no  time  during  which  it  is  to  last,  and  no  time  is  fixed  by 
law  or  by  usage,  it  may  be  determined  at  the  will  of  either  party 
by  notice.^"  A  contract  of  hiring,  for  instance,  if  no  time  is  speci- 
fied, is  generally  construed  as  a  hiring  at  will;  and  the  fact  that 
wages  are  payable  at  specified  periods  does  not  necessarily  show 
that  the  hiring  was  for  a  specified  period, ^^  In  every  contract  of 
hiring,  certain  provisions  for  discharge  are  implied.  If  the  serv- 
ant proves  incompetent,  for  instance,  or  if  he  acts  in  such  a  way 
as  to  injure  the  employer's  business,  or  is  otherwise  guilty  of 
breach  of  duty,  the  latter  may  rightfully  discharge  him.^^  This, 
however,  is  a  breach  of  contract  by  the  servant  or  agent,  and  the 
master  or  principal  is  discharged  by  the  breach. 

111.  App.  327.  See  "Contracts,"  Dec.  Dig.  {Key-^'o.)  §  217;  Cent.  Dig.  §§ 
1005-1009. 

5  8  Jenkins  v.  Long,  8  Md.  132.  And  so  it  is  with  any  other  kind  of  con- 
tract which  contains  an  express  provision  that  it  may  be  terminated  at  any 
time  on  giving  notice.  Geiger  v.  Railroad  Co.,  41  Md.  4 ;  Oregon  &  W.  Mortg. 
Sav.  Bank  v.  Mortgage  Co.  (C.  C.)  35  Fed.  22;  Adriance  v.  Rutheford,  57 
Mich.  170,  23  N.  W.  718.  -See  "Master  and  Servant;'  Dec.  Dig.  (,Key-No.)  § 
21;    Cent.  Dig.  §§  20,  21. 

B»  Parker  v.  Ibbetson,  4  C.  B.  (N.  S.)  347.  See  "Customs  and  Usages,"  Dec. 
Dig.   (Kcy-Wo.)  §  10;    Cent.  Dig.  §§  11-39. 

6  0  Coffin  V.  Landis,  46  Pa.  42G;  Peacock  v.  Curamings,  Id.  434;  Greenburg 
V.  Early,  4  Misc.  Rep.  99,  23  N.  Y.  Supp.  1009;  Attrill  v.  Patterson,  58  Md. 
226;  Walker  v.  Denison,  86  111.  142,  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  216;    Cent.  Dig.  §§  996-1009. 

61  Babcock  &  Wilcox  Co.  v.  Moore,  62  Md.  161 ;  McCullough  Iron  Co.  v. 
Carpenter,  67  Md.  554,  11  Atl.  176 ;  Beach  v.  Mullin,  34  N.  J.  Law,  343 ;  Tat- 
terson  v.  Manufacturing  Co.,  106  Mass.  56;  Franklin  Min.  Co.  v.  Harris,  24 
Mich.  115;  Prentiss  v.  Ledyard,  28  Wis.  131;  Haney  v.  Caldwell,  35  Ark. 
156.  See  "Hasten-  and  Sei'varU,"  Dec^  Dig.  {Key-No.)  §  21;  Cent.  Dig.  §§ 
20,  21. 

6  2  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  R.  A.  759 ;  Adams  Exp,  Co. 
V.  Trego,  35  Md.  47;  Leatherberry  v,  Odell  (C.  C.)  7  Fed.  641;  Callo  v. 
Brouncker,  ,4  Car.  &  P.  518;  Beeston  v.  Caller,  2  Car.  &  P.  607;  Newman 
V.  Reagan,  63  Ga.  755;  Drayton  v,  Reid,  5  Daly  (N.  Y.)  442;  Fillieul  v. 
Armstrong,  7  Adol.  &  E.  557.  See  "Master  and  Servant,"  Deo.  Dig.  {Key- 
No.)  §  30;    Cent.  Dig.  §§  50-36. 


§    237)  BY  PERFORMANCE  539 

DISCHARGE  OF  CONTRACT  BY  PERFORMANCE 

237.  A  contract  is  discharged  by  performance — 

(a)  Where  a  promise  has  been  given  upon  an  executed  consid- 

eration, and  is  performed  by  the  promisor. 

(b)  Where  one  promise  has  been  given  in  consideration  of  an- 

other, and  both  are  performed." 

Performance  of  a  contract  which  amounts  to  an  extinction  of 
the  obligation  must  be  distinguished  from  performance  which 
discharges  one,  only,  of  the  parties  from  further  liabilities  under 
it.  Where  a  promise  has  been  given  upon  an  executed  consid- 
eration, the  promisee  has  performed  his  part  in  the  formation  of 
the  contract,  and  performance  of  his  promise  By  the  promisor 
discharges  the  contract.  All  >  has  been  done  on  both  sides  that 
could  be  required  to  be  done  under  the  contract.  Where  the 
contract  is  wholly  executory — that  is,  where  one  promise  has 
been  given  in  consideration  of  another — performance  by  one  party 
does  not  discharge  the  contract,  though  it  discharges  him  from 
further  liability  under  it.  Each  must  have  done  his  part,  in  order 
that  performance  may  be  a  discharge  of  the  contract. 

Whether  or  not  a  contract  has  been  performed,  so  far  as  the 
person  performing  the  contract  is  concerned,  must  be  answered 
by  reference  to  the  operation  of  contract,  while,  in  so  far  as  the 
performance  is  concerned,  it  must  be  answered  by  reference  to  the 
construction  of  contract. 

Substantial  Performance 

At  common  law,  a  strict  and  literal  performance  in  accordance 
with  the  terms  of  the  contract  is,  as  a  rule,  required.**  In  equity, 
on  the  other  hand,  contracts  not  capable  of  literal  performance  will 
be  decreed  with  compensation  for  deficiencies  where  there  is  a 
variance,  provided  the  contract  can  be  performed  in  substance.®'* 
Even  at  law  the  rule  generally  prevails  that  where  one  of  the 
parties  has  endeavored  in  good  faith  to  perform  and  has  sub- 
stantially performed  his  contract,  and  thereby  conferred  on  the 

«8  Anson,  Cont.   (4th  Ed.)  270. 

64  Dauchey  v.  Drake,  85  N.  Y.  407;  Glaclus  v.  Black.  50  N.  T.  145,  10  Am. 
Rep.  449 ;  Smith  v.  Brady,  17  N.  Y.  173,  72  Am.  Dec.  442 ;  Harris  v.  Sharpies, 
202  Pa.  243,  51  Atl.  9G."),  58  L.  R.  A.  214.  But  there  may  be  performance, 
within  the  fair  intent  and  meaning  of  the  contract,  if  the  departure  from 
the  letter  of  the  contract  is  triflinq:.  Drew  v.  Goodhue,  74  Vt.  4.36,  52  Atl. 
971.     See  "Cowfror-/.?,"  Dec.  Dig.  (Key-No.)  i  294;   Cent.  Dig.  §§  13o2-13G2. 

65  Eaton,  Eq.  558. 


540  DISCHARGE    OF    CONTRACT  (Ch.  11 

Other  party  a  substantial  benefit,  although  he  has  failed  to  perform 
in  some  particulars,  he  may  recover  the  contract  price,  less  the 
amount  of  the  damages  sustained  by  the  other  party  by  reason 
of  the  failure  of  strict  performance.*' 

The  rule,  it  has  been  said,  is  based  on  the  theory,  "first,  that  the 
defects  or  omissions  may  be  remedied  or  cured,  so  that  the  work 
will  then  correspond  with  the  contract,  or  the  other  party  may  be 
fully  compensated  in  money  for  the  slight  damage  done  him  by 
the  failure  to  fully  perform  the  contract;  and,  second,  that  it 
is  unfair  and  unjust  for  the  one  party,  who  has  reaped  the  benefit 
in  nearly  full  measure  of  the  other  party's  labor,  to  refuse  ta 
pay  for  the  work  actually  done  in  accordance  with  the  contract."  "' 

To  justify  a  recovery  on  the  contract  so  substantially  performed,, 
the  omissions  or  deviations  must  not  be  willful ;  ®*  and  "they 
must  be  slight  or  susceptible  of  remedy,  so  that  an  allowance  out 
of  the  contract  price  will  give  the  other  party  substantially  what 
he  contracted  for."  '*  This  rule  has  its  most  frequent  application 
in  building  contracts,  where  the  contractor's  labor  and  materials 
have   added  value   to   the   owner's  land,   which   the   owner   must 

esHaywaid  v.  Leonard,  7  Pick.  (Mass.)  181,  19  Am.  Dec.  268;  Nolan  y, 
Whitney.  88  N.  Y,  648 ;  Blood  v.  Wilson,  141  Mass.  25,  6  N.  E.  362 ;  Pinches 
V.  Lutheran  Church,  55  Conn.  183,  10  Atl.  264;  Todd  v.  Huntin^on,  13  Or. 
9,  4  Pac.  295;  Katz  v.  Bedford,  77  Cal.  319,  19  Pac.  523,  1  L.  R.  A.  826; 
Leeds  t.  Little,  42  Minn.  414,  44  N.  W.  309;  Gallagher  v.  Sharpless,  134  Pa. 
134,  19  Atl.  491 ;  Keeler  v.  Herr,  157  111.  57,  41  N.  E.  750 ;  Ashley  v.  Hena- 
han,  56  Ohio  St  559,  47  N.  E.  573 ;  Desmond-Dunne  Co.  v,  Friedman-Doscher 
Co.,  162  N,  Y.  486,  56  N.  E.  995 ;  Spence  v.  Ham,  163  N.  Y.  220,  57  N.  E.  412, 
51  L.  R.  A.  238 ;  Palmer  v.  Meriden  Britannia  Co.,  188  111.  508,  59  N.  E.  247 ; 
Philip  Hiss  Co.  v.  Pitcairn  (C.  C.)  107  Fed.  425;  Jones  &  Hotchkiss  Co.  v. 
Davenport,  74  Conn.  418,  50  Atl.  1028;  Foeller  v.  Heintz,  137  Wis.  169,  118 
N.  W.  543,  24  L.  R.  A.  (N.  S.)  327;  Mitchell  &  Pumphrey  v.  Caplinger,  97 
Ark.  278.  1.33  S.  W.  1032.  Cf.  ^tna  Iron  &  Steel  Works  v.  Kossuth  County, 
79  Iowa,  40,  44  N.  W.  215.  See  "Contracts;'  Dec.  Dig.  {Key-No.)  §  294; 
Cent.  Dig.  §§  1352-1362. 

«T  Dickinson  v.  Sheldon,  146  App.  Div.  144,  130  N.  Y.  Supp.  889,  892,  per 
McLennon,  P,  J.  See  "Contracts"  Dec.  Dig.  (Key-No.)  §  294;  Cent.  Dig.  §§ 
1352-1362. 

6  8  Morgan  v.  Gamble,  230  Pa.  165,  79  AtL  410.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  29J,;    Cent.  Dig.  §§  1S52-1362. 

6  9  Elliott  V.  Caldwell,  43  Minn.  357,  45  N.  W.  845,  9  L.  R.  A.  52.  See,  also, 
Gillespie  Tool  Co.  v.  TVilson,  123  Pa.  19,  16  Atl.  36;  Van  Clief  v.  Van  Vech- 
ten,  130  N.  Y.  571,  29  N.  E.  1017;  Marchant  v.  Hayes,  117  Cal.  669,  49  Pac. 
840 ;  Anderson  v.  Todd,  8  N.  D.  158,  77  N.  W.  599 ;  Cornish  Curtis  &  Greene 
Co.  V.  Association,  82  Minn.  215,  84  N.  W.  724;  Harris  v.  Sharpies,  202  Pa. 
243,  51  Atl.  965,  58  L.  R.  A.  214;  Dickinson  v.  Sheldon,  146  App".  Div.  144, 
130  N.  Y.  Supp.  889;  Hoglund  v.  Sortedahl,  101  Minn.  359,  112  N.  W.  408. 
But  see  Danforth  v.  Freeman,  69  N.  H.  466,  43  Atl.  621.  Se&  "Contracts," 
Dec.  Dig.  (Key-No.)  §  294;   Cent.  Dig.  §§  1352-1362. 


§    237)  BY  PERFORMANCE  541 

necessarily  retain  and  have  the  benefit  of.  Itseems  that  in  such 
cases,  where  there  is  a  material  breach,  the  liability  is  4uasi 
contractual,  the  plaintiff  being  allowed  to  recover  because  of  the 
unjust  enrichment  of  the  other  party,  and  consequently  that  the 
amount  of  recovery  should  be,  not  necessarily  the  contract  price 
less  the  damages  resulting  from  failure  of  strict  performance, 
but,  as  has  recently  been  held  in  Massachusetts,  the  additional 
value  to  the  land  of  the  defendant  by  reason  of  the  plaintiff's  labor 
and  materials,  and  that  the  burden  is  on  the  plaintiff  to  show  a 
benefit,  and  its  amount.''"  In  many  cases,  however,  this,  value 
can  be  ascertained  by  deducting  from  the  contract  price  the  cost 
of  completing  the  building  or  article  according  to  the  specifica- 
tions.^^ 

Where  there  are  defects  not  remediable,  there  should  be  added 
such  further  sum  as  will  measure  the  actual  diminished  value  of 
the  structure  because  of  such  defects.''* 

Performance  to  Satisfaction  of  Promisor 

Where  it  is  a  term  of  the  contract  that  the  performance  shall 
be  satisfactory  to  the  other  party,  it  is  a  question  of  interpretation 
whether  his  obligation  is  conditional  upon  actual  satisfaction  or 
reasonable  satisfaction.  In  contracts  in  which  the  subject-matter 
involves  the  personal  taste  or  judgment  of  the  promisor,^*  for  ex- 
ample, a  suit  of  clothes,^*  a  picture,^'  a  play,  or  other  literary 
production,^®  the  courts  construe  the  contract  as  making  the 
promisor  the  sole  judge;    and  although  the  compensation  of  the 

TO  Glllis  V.  Cobe,  177  Mass.  5S4,  59  N.  E.  455.  See  "Contracts,"  Dec.  Dig, 
(Key-No.)   §  295;    Cent.  Dig.  §§  1352-1S62. 

71  See  Kelly  v.  Town  of  Bradford.  33  Vt.  35 ;  Pinches  v.  Lutheran  Church, 
55  Conn.  185,  10  Atl.  264 ;  Norwood  v.  Lathrop,  178  Mass.  208,  59  N.  E.  650. 
See  "Contracts,"  Dec.  Dig.   (Key-No.)   §  295;    Cent.  Dig.  §§  1362-1362. 

7  2Foeller  v.  Heintz,  137  Wis.  169,  118  N.  W.  543,  24  L.  R.  A.  (N.  S.)  327. 
See\  "Contracts,"  Dec.  Dig.   (Key-No.)  §  295;    Cent.  Dig.  §§  1352-1362. 

73  Andrews  v.  Belfield,  2  C.  B.  (N.  S.)  779;  McCarren  v.  McXulty,  7  Gray 
(Mass.)  139;  McClure  v.  Briggs,  58  Vt  82,  2  Atl.  583,  56  Am.  Rep.  557; 
Hawkins  v.  Graham,  149  Mass.  284,  21  N.  E.  312,  14  Am.  St.  Rep.  422 ;  Hous- 
ding  V.  Solomon,  127  Mich.  654,  87  N.  W,  57.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  282;    Cent.  Dig.  §§  12S-'t-1289. 

Ti  Brown  v.  Foster,  113  Mass.  136,  18  Am.  Rep.  463.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  282;   Cent.  Dig.  §§  128^-1289. 

7  5  Gibson  v.  Cranage,  39  Mich.  49,  33  Am.  Rep.  351;  Zaleski  v.  Clark,  44 
Conn.  218,  26  Am.  Rep.  446 ;  PENNINGTON  v.  ROWLAND,  21  R.  I.  65,  41 
Atl.  891,  79  Am.  St.  Rep.  774,  Thockmorton  Cas.  Contracts,  370.  See  "Coih- 
tracts,"  Dec.  Dig.  (Key-No.)  §  282;   Cent.  Dig.  §§  1281,-1289. 

78  Haven  v.  Russell  (Sup.)  34  N.  Y.  Supp.  292;  Walker  v.  Edward  Thomp- 
son Co.,  37  App.  Div.  .530,  5G  N.  Y.  Supp.  326.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  282;    Cent.  Dig.  §§  128J,-1289. 


542         ^        Vi'"^  DISCHARGE    OF    CONTRACT  (Ch.  11 

promisee  may  thus  be  dependent  on  the  promisor,  who  unrear 
sonably  withholds  his  satisfaction,  the  promisee  cannot  be  relieved 
from  the  contract  into  which  he  has  voluntarily  entered.  The 
tendency  of  the  courts  is  perhaps  to  construe  all  contracts  pro- 
viding for  the  satisfaction  of  the  promisor  in  the  same  manner.'^'' 
The  promisor  must,  however,  act  in  good  faith. '^^  On  the  other 
hand,  the  parties  may  agree  that  the  satisfactoriness  may  be  de- 
termined by  the  mind  of  a  reasonable  man,  and  not  by  the  mere 
taste  or  liking  of  the  promisor;  ^^  and  where  the  subject-matter 
of  the  contract  involves  such  considerations  as  salability,  operative 
fitness,  and  mechanical  utility,  rather  than  personal  feeling  or  taste, 
many  courts  construe  the  satisfaction  contemplated  as  that  of 
a  reasonable  man.®°  And  some  cases  even  lay  down  the  broad 
rule  that  where  a  contract  is  to  be  performed  to  the  satisfaction 
of  one  of  the  parties,  the  meaning  necessarily  is  that  it  must  be 
done  to  the  satisfaction  of  the  mind  of  a  reasonable  man.*^  It 
seems,  however,  that  the  question  in  each  case  should  be  the 
determination   of  the  intention  of  the  parties  as  evinced  by  the 

TT  Seeley  v.  "Welles,  120  Pa.  69,  13  Atl.  Tr'.G;  Adams  Radiator  &  Boiler 
Works  V.  Schnader,  155  Pa.  394,  26  Atl.  745,  35  Am.  St.  Rep.  893 ;  Silsby  Mfg. 
Co.  V.  Town  of  Chico  (C.  C.)  24  Fed.  893:  Campbell  Printinjr-Press  Co.  v. 
Thorp  (C.  C.)  36  Fed.  414,  1  L.  R.  A.  645;  Wood  Reaping  &  Mowing  Mach. 
Co.  V.  Smith,  50  Mich.  565,  15  N.  W.  906,  45  Am.  Rep.  57;  McCormick  Har- 
vesting Mach.  Co.  V.  Chesrown,  33  Minn.  32,  21  N.  W.  846;  Exhaust  Venti- 
lator Co.  V.  Railroad  Co.,  66  Wis.  218,  28  N.  W.  343,  57  Am.  Rep.  2.57 ;  Blaine 
V.  Publishers  George  Knapp  &  Co.,  140  Mo.  241,  41  S.  W.  787 ;  Williams  Mfg. 
Co.  V.  Brass  Co.,  173  Mass.  356,  53  N.  E.  862.  Contract  for  personal  services. 
Beissel  v.  Vermillion  Farmers'  Elevator  Co.,  102  Minn.  229,  113  N.  W.  575, 
12  L.  R.  A.  (N.  S.)  403  and  note;  Mackenzie  v.  Minis,  132  Ga.  323,  63  S.  E. 
900,  23  L.  R.  A.  (N.  S.)  1003.  16  Ann.  Cas.  723.  See  ''Contracts,"  Dec.  Dig. 
(Keu-No.)  §  2S2;    Cent.  Dig.  §§  12SJi-1289. 

7  8  Andrews  v.  Belfield,  2  C.  B.  N.  S.  779;  Stodhard  v.  Lee,  3  Best  &  S.  364, 
32  L.  7.  Q.  B.  N.  S.  75;  Silsby  Mfg.  Co.  v.  Town  of  Chico  (C.  C.)  24  Fed. 
893;  Singerly  v.  Thayer,  108  Pa.  291,  2  Atl.  230,  56  Am.  Rep.  207;  Electric 
Lighting  Co.  of  Mobile  v.  Elder,  115  Ala.  138,  21  South.  983;  Crawford  v. 
Mail  &  Exp.  Pub.  Co.,  9  App.  Div.  481,  41  N.  Y.  Supp.  325.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  2S2;    Cent.  Dig.  §§  128^-1289. 

7  9  Hawkins  v.  Graham,  149  Mass.  284,  21  N.  E.  312,  14  Am.  St.  Rep.  422. 
See  "Contracts,"  Dec.  Dig.   (Key-No.)  §  282;    Cent.  Dig.  §§  128.'t-1289. 

8  0  Wood  Reaping  &  Mowing  Mach.  Co.  v.  Smith,  50  Mich.  565,  15  N.  W. 
906,  908,  45  Am.  Rep.  57;  Schliess  v.  City  of  Grand  Rapids,  131  Mich.  52,  90 
N.  W.  700.  And  see  Duplex  Safety  Boiler  Co.  v.  Garden,  101  N.  Y.  387,  4 
N.'E.  749,  54  Am.  Rep.  709.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  282; 
Cent.  Dig.  §§  12S.',-1289. 

81  Keeler  v.  Clifford,  165  111.  544,  46  N.  E.  248;  Richison  v.  Mead,  11  S. 
D.  639,  80  N.  W.  131.  And  see  Doll  v.  Noble,  116  N.  Y.  230,  22  N.  E.  406, 
5  L.  R.  A.  554.  15  Am.  St.  Rep.  398.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
282;    Cent.  Dig.  §§  1284-1289. 


§    237)  BY   PERFORMANCH  543 

particular  contract,  and  that  no  invariable  rules  of  interpretation 

can  be  laid  down.®* 

Time  of  Pet'fonnance 

Where  no  time  for  performance  is  fixed  by  the  contract,  a 
reasonable  time  is  implied.®^  Where  a  time  is  specified,  the  ques- 
tion arises  whether  it  is  of  the  essence  of  the  contract  or  not. 
This  question  must  be  answered  by  the  rules  of  construction  which 
we  have  already  considered.®*  If  time  is  of  the  essence,  a  failure 
by  one  party  to  perform  within  the  time  limited  entitles  the  other 
party  to  be  discharged  from  the  contract,  and  a  performance  after 
the  time  fixed  does  not  bind  the  other  party  unless  he  waives  the 
breach,  and  thereby,  in  effect,  makes  a  new  contract  taking  the 
place  of  the  old  one.  And  even  where  time  is  not  of  the  essence  of 
a  contract,  a  party  failing  to  perform  his  work  within  the  time 
specified  is  liable  in  damages  for  the  delay.®" 

Where  a  particular  day  is  fixed  upon  for  performance,  or  per- 
formance is  required  within  a  certain  time,  the  contract  may  be 
performed  at  any  time  during  the  day  or  during  the  last  day.®^ 

Effect  of  Failure  of  Performance 

If  there  is  a  failure  of  performance,  partial  or  total,  then  the 
contract  is  broken.  Whether  the  breach  amounts  to  a  discharge 
is  a  question  which  we  shall  hereafter  discuss.®^ 

8  2  Wood  Reaping  &  Mowing  Mach.  Co.  v.  Smith,  50  Mich.  565,  15  N.  W. 
906,  45  Am.  Rep.  57;  Hawkins  v.  Graham,  149  Mass.  284,  21  N.  E.  312,  14 
Am.  St  Rep.  422 ;  Magee  v.  Lumber  Co.,  78  Minn.  11,  80  N.  W.  781 ;  Electric 
Lighting  Co.  of  Mobile  v.  Elder,  115  Ala.  138,  21  South.  983;  McNeil  v.  Arm- 
strong, 81  Fed.  943,  27  C.  C.  A.  16;  City  of  Elizabeth  v.  Fitzgerald,  114  Fed. 
547,  52  C.  C.  A.  321.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  2S2;  Cent.  Dig. 
§§  12SJf-12S9. 

83  Ante,  p.  512.  Where  the  act  to  be  done  is  the  payment  of  money,  the 
presumption  is  that  it  is  to  be  paid  on  demand.  Warren  v.  Wheeler,  8  Mete. 
(Mass.)  97.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  212;  Cent.  Dig.  §§  9U- 
955. 

8*  Ante.  p.  512. 

85  BECK  &  PAULI  LITHOGRAPHING  CO.  v.  COLORADO  MILLING  & 
ELEVATOR  CO.,  52  Fed.  700,  3  C.  C.  A.  248,  Throckmorton  Cas.  Contracts, 
350;  Brady  v.  Oliver,  125  Tenn.  595,  147  S.  W.  1135,  41  L.  R.  A.  (N.  S.)  60, 
Ann.  Cas.  1913C,  376.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  299;  Cent. 
Dig.  §§  1S72-13S1. 

86  Leake,  Cont.  441;  Startup  y.  Macdonald,  6  Man.  &  G.  593.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  %  21S;  Cent.  Dig.  §§  957-977;  "Time,"  Dec: 
Dig.  (Key-No.)  §  11;   Cent.  Dig.  §  53. 

8 "See  post,  p.  556  et  seq. 


544  DISCHARGB    OF    CONTRACT  (Ch,  11 


SAME— PAYMENT 

238.  Payment  consists  in  the  performance  of  a  contract— 

(a)  By  the  delivery  of  money,  or 

(b)  By  the  delivery  of  negotiable  instruments   conferring  the 

right  to  receive  money,  in  which  latter  case  the  payee 
may  take  the  instrument — 

(1)  In  discharge  of  his  right  absolutely,  or 

(2)  Subject  to  a  condition    (which,   in  most  jurisdictions, 

will  be  presumed,  in  the  absence  of  expressions  to  the 
contrary)  that,  if  not  paid  when  due,  the  payee  re- 
verts to  his  original  rights,  either  to  performance  of 
the  contract  or  satisfaction  for  its  breach.^* 

If  the  liability  of  a  party  to  a  contract  consists  in  the  payment 
of  a  sum  of  money  in  a  certain  way  or  at  a  certain  time,  such 
a  payment  discharges  him  by  the  performance  of  his  agreement. 
If,  again,  a  person  who  is  liable  to  perform  certain  acts  under  his 
contract  wishes  instead  to  pay  a  sum  of  money,  or,  having  to  pay 
a  sum  of  money,  wishes  to  pay  it  in  a  manner  at  variance  with 
the  terms  of  the  contract,  he  must  agree  with  the  other  party  to 
accept  the  proposed  payment  in  lieu  of  such  performance  as  he 
is  entitled  to  under  the  contract.®*  In  such  a  case  the  payment  is 
a  performance  of  the  substituted  agreement,  and  a  discharge  of 
the  contract.  Again,  where  one  of  two  parties  has  made  default 
in  the  performance  of  his  part  of  the  contract,  so  that  a  right  of 
action  has  accrued  to  the  other,  the  obligation  formed  by  this 
right  of  action  may  be  discharged  by  an  accord  and  satisfaction ; 
that  is,  an  agreement,  the  consideration  for  which  is  usually  a 
money  payment,  made  by  the  party  against  whom  the  right  exists, 
and  accepted  in  discharge  of  his  right  by  the  other.'"  Payment, 
then,  is  the  performance  of  a  contract,  whether  it  be  a  performance 
of  an  original  or  of  a  substituted  contract,  or  of  a  contract  in 
which  payment  is  the  consideration  for  a  forbearance  to  exercise 
a  right  of  action  which  may  have  arisen  from  the  breach  of  an 
agreement.®^ 

88  Anson,  Cont.  (4th  Ed.)  272-274.  89  Ante,  p.  528. 

»o  Post,  p.  615. 

91  In  Union  Biscuit  Co.  t.  Sprin^eld  Grocer  Co.,  143  Mo.  App.  300,  126 
S.  W.  996,  it  is  said  per  Nixon,  P.  J. :  "In  order  to  constitute  payment  as  that 
word  is  used  in  law,  there  must  be  (1)  a  delivery ;  (2)  by  the  debtor  or  his 
representatives;  (3)  to  the  creditor  or  his  representatives;  (4)  of  money  or 
something  accepted  by  the  creditor  as  the  equivalent  thereof ;  (5)  with  the 
intention  on  the  part  of  the  debtor  to  pay  the  debt  in  whole  or  in  part;   and 


§    238)  BY   PERFORMANCB  545 

If  a  tender  is  made  by  the  debtor  of  money  or  other  thing  as 
in  full  satisfaction  of  his  debt,  the  acceptance  by  the  creditor  of 
that  which  is  tendered  constitutes  a  complete  discharge  of  the 
debt.  The  creditor  may  not  apply  the  amount  received  and  recover 
a  balance  claimed  to  be  due.^^  Unless  otherwise  agreed  between 
the  parties,  payment  may  be  made  only  in  money.^^  With  the 
consent  of  the  creditor,  however,  the  debtor  may  discharge  his 
obligation  by  the  delivery  of  anything  of  value.®* 

If  counterfeit  coins,  bank  notes,  or  other  moneys  are  given  in 
performance  of  a  promise  to  pay  money,  even  though  they  are 
believed  to  be  good,  there  is  no  payment.  The  promisee  may  treat 
it  as  a  nullity.^"  But  a  coin  issued  by  authority  of  law  to  cir- 
culate as  money  is  not  deprived  of  its  legal  tender  quality  merely 
by  being  worn  in  the  process  of  circulation,  nor  when  bruised  or 
cracked,  so  long  as  it  is  not  appreciably  diminished  in  weight,  and 
retains  the  evidence  of  its  being  genuine.®^  So  payment  by  a 
rare  coin  is  good,  if  it  is  genuine  and  distinguishable  as  such.®'" 

(6)  accepted  as  payment  by  the  creditor."     See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  808;    Cent.  Dig.  §§  U6S,  1464. 

9  2  St.  Regis  Paper  Co.  v,  Tonawanda  Board  &  Paper  Co.,  107  App.  Div.  90. 
94  N.  Y.  Supp.  946  [affirmed  1S6  N.  Y.  563,  79  N.  E.  1115] ;  Nassoiy  v.  Tom- 
linson,  148  N.  Y.  328,  42  N.  E.  715,  51  Am.  St.  Rep.  695.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  §  S04;  Cent.  Dig.  §§  U51-lJt64;  "Accord  and  Satisfac- 
tion," Dec.  Dig.   (Key-No.)   §  11;    Cent.  Dig.  §§  7-5-82. 

93  First  Nat  Bank  of  Blakely  v.  Davis,  135  Ga.  687,  70  S.  E.  246,  36  L.  R. 
A.  (N,  S.)  134.  Payment  made  to  a  solvent  bank  by  a  check  drawn  upon  it 
is  equivalent  to  payment  in  money  and  is  binding  upon  a  principal  for  whom 
the  bank  acted  as  agent  Pollok  Bros.  v.  Niall-Herin  Co.,  137  Ga.  23,  72  S.  E. 
415,  35  L.  R.  A.  (N.  S.)  13.  See  "Payment,"  Dec.  Dig.  (Key-No.)  §  9;  Cent. 
Dig.  §§  3.',-SS. 

94  First  Nat  Bank  of  Blakely  v.  Davis,  135  Ga.  687,  70  S.  E.  246,  36  L.  R. 
A.  (N.  S.)  134.     See  "Payme>it,"  Dec.  Dig.  (Key-No.)  §  9;  Cent.  Dig.  §§  34-53. 

95  Markle  v.  Hatfield,  2  Johns.  (N,  Y.)  455,  3  Am.  Dec.  446;  Young  v.  Ad- 
ams, 6  Mass.  182 ;  Gilman  v.  Peck,  11  Vt  516,  34  Am.  Dec.  702 ;  Blalock  v. 
Phillips,  38  Ga.  216;  United  States  v.  Morgan,  11  How.  154,  13  L.  Ed.  643; 
First  Nat  Bank  of  Athens  v.  Buchanan,  87  Tenn.  32,  9  S.  W.  202,  1  L.  R.  A. 
199,  10  Am.  St  Rep.  617.  He  may  be  estopped,  however,  if  he  was  guilty  of 
negligence  In  receiving  the  counterfeit,  or  if,  after  discovery,  he  delays  for 
an  unreasonable  time  to  return  it  or  notify  the  debtor.  Thomas  v.  Todd,  6 
Hill  (N.  Y.)  340;  Pindall's  Ex'rs  v.  Bank,  7  Leigh  (Va.)  617;  Rick  v.  Kelly, 
80  Pa.  527 ;  Wingate  v.  Neidlinger,  50  Ind.  520 ;  Union  Nat  "Bank  v.  Balden- 
wick,  45  111.  375;  Atwood  v.  Cornwall,  28  Mich.  336,  15  Am.  Rep.  219.  See 
"Payment,"  Dec.  Dig.   (Key-No.)   §  11;    Cent.  Dig.  §  58. 

96  Cincinnati  Northern  Traction  Co.  v.  Rosnagle,  84  Ohio  St  310,  95  N.  E. 
884,  35  L.  R.  A.  (N.  S.)  1030,  Ann.  Cas.  1912C,  639.  See  "Payment,"  Dec. 
Dig.  (Key-No.)  §  10;   Cent.  Dig.  §§  J,2-61. 

97  Atlanta  Consolidated  St  Ry.  Co.  v.  Keeny,  99  Ga.  266,  25  S.  E.  629,  .33 
L.  R.  A.  824.    See  "Payment,"  Dec.  Dig.  (Key-No.)  §  10;   Cent.  Dig.  §§  42-61. 

Clark  Cont.(3d  Ed.) — 35 


546  DISCHARGE    OF    CONTRACT  (Ch.  11 

Where,  for  the  purpose  of  making  a  payment,  money  is  sent 
by  the  debtor  to  the  creditor  by  mail,  and  is  lost  before  it  reaches 
him,  it  will  discharge  the  debt,  and  the  loss  will  fall  on  the  cred- 
itor, if  the  remittance  was  in  the  manner  authorized  by  him,  but 
not  otherwise.®* 

Payment  by  Negotiable  or  Nonnegotiable  Instrument 

A  negotiable  instrument  may  be  given  for  a  sum  due,  either 
liquidated  or  unliquidated.  It  is  in  effect  a  substitution  of  a  new 
agreement  for  the  old  one,  but  it  does  not  necessarily  discharge 
the  old  agreement.  Where  such  a  payment  is  made,  either  in  per- 
formance of  an  existing  contract  or  in  satisfaction  of  a  broken 
contract,  it  may  discharge  the  party  making  it,  either  absolutely 
or  conditionally.  Whether  it  has  the  one  or  the  other  of  these 
effects  depends  upon  the  intention  of  the  parties.®®  If  the  instru- 
ment is  accepted  by  the  party  entitled  to  payment,  and  in  con- 
sideration thereof  he  promises,  either  expressly  or  impliedly,  to 
discharge  the  other  party  altogether  from  his  existing  liabilities, 
the  discharge  of  the  original  contract  is  absolute.  The  payee 
relies  then  upon  the  rights  conferred  by  the  instrument,  and,  if 
it  is  not  paid,  he  must  sue  on  it.  He  cannot  sue  on  the  original 
contract.^     On  the  other  hand,  the  instrument  may  be  taken  as  a 

88  Palmer  v.  Insurance  Co.,  84  N.  Y.  63;  Gurney  v.  Howe,  9  Gray  (Mass.) 
404,  69  Am.  Dec.  299 ;  Buell  v.  Chapin,  99  Mass.  594,  97  Am.  Dec.  .58 ;  Ken- 
yon  V.  Association,  122  N.  Y.  247,  25  N.  E.  299 ;  Burr  v.  Sickles,  17  Ark.  428, 
65  Am.  Dec.  4.37 ;  Williams  v.  Carpenter,  36  Ala.  9,  76  Am.  Dec.  316 ;  Gross 
V.  Criss.  3  Grat  (Va.)  262.  See  "Payment,"  Dec.  Dig.  {Key-No.)  §  8;  Ceyit. 
Dig.  %  18. 

89  CHELTENHAM  STONE  &  GRAVEL  CO.  v.  GATES  IRON  WORKS.  124 
111.  623,  16  N.  E.  923,  Throckmorton  Cas.  Contracts,  374;  Flanagin  v.  Hamble- 
ton,  54  Md.  222:  Combination  Steel  &  Iron  Co.  v.  Railway  Co..  47  Minn.  207, 
49  N.  W.  744 ;  Kirkpatrick  v.  Puryear,  93  Tenn.  409,  24  S.  W.  1130,  22  L.  R.  A. 
785 ;  National  Park  Bank  v.  Levy,  17  R.  I.  746.  24  Atl.  777,  19  L.  R.  A.  475 ; 
Case  Mfg.  Co.  v.  Soxman,  138  U.  S.  431,  11  Sup.  Ct.  360,  34  L.  Ed.  1019 ; 
Craddock  v.  Dwlght,  85  Mich.  587,  48  N.  W.  644 ;  Bank  of  Monroe  v.  Gifford, 
79  Iowa,  300,  44  N.  W.  558;  note  2,  infra.  See  "Payment"  Dec.  Dig.  {Key- 
No.)  §  16;   Cent.  Dig.  §§  63-85. 

1  Sard  V.  Rhodes,  1  Mees.  &  W.  153;  Wolf  v.  Fink,  1  Pa.  435,  44  Am.  Dec. 
141 ;  Ralston  v.  Wood,  15  111.  159,  58  Am.  Dec.  604 ;  Bausman  v.  Guarantee 
Co.,  47  Minn.  377,  50  N.  W.  496;  Kirkpatrick  v.  Puryear,  93  Tenn.  409,  24 
S.  W.  1130,  22  ^L.  R.  A.  785;  Susquehanna  Fertilizer  Co.  v.  White,  66  Md. 
444,  7  Atl.  802,  59  Am.  Rep.  186;  Costar  v.  Davies,  8  Ark.  213,  46  Am.  Dec. 
311;  McFadden  v.  Follrath,  114  Minn.  So,  130  N.  W.  542,  37  L.  R.  A.  (N.  S.) 
201  (acceptance  and  cashing  of  check  by  agent  of  creditor).  Where  a  cred- 
itor procures  the  certification  of  a  check  delivered  to  him  by  his  debtor,  it 
constitutes  a  payment  to  the  amount  of  the  check.  St.  Regis  Paper  Co.  v. 
Tonawanda  Board  &  Paper  Co.,  107  App.  Div.  90,  94  N.  Y.  Supp.  946  [affirmed 


§    238)  BY   PERFORMANCH  547 

conditional  discharge  only;  and  in  England  and  in  most  of  our 
states  it  is  presumed  to  have  "Been  so  taken  unless  there  is  some- 
thing to  show  a  contrary  intention.^  In  such  a  case  the  position 
of  the  parties  is  that  the  payee,  having  certain  rights  against  the 
other  party  under  a  contract,  has  agreed  to  take  the  instrument 
from  him  instead  of  immediate  payment  of  what  is  due  him,  or 
immediate  enforcement  of  his  right  of  action,  and  the  other  party, 
in  giving  the  instrument,  has  thus  far  satisfied  the  payee's  claim ; 
but,jf_the  instrument  is  not  paid  at  maturity,  the  consideration  for 
the^  payee's  promise  fails,  and  his  original  rights  are  restored  to 
him.  The  effect  of  receiving  a  negotiable  instrument  conditionally 
is  merely  to  suspend  the  right  to  sue  on  the  original  contract 
until  the  instrument  matures,  and  when  it  matures,  and  is  not 
paid,  to  give  the  right  to  sue  either  on  it  or  on  the  original  con- 

186  N.  T.  563,  79  N.  E.  1115].  And  a  creditor's  failure  to  use  due  diligence 
in  presenting  a  check  for  payment  operates  as  payment  to  the  extent  that  the 
debtor  is  prejudiced  thereby.  Mankey  v.  Hoyt,  27  S.  D.  561,  132  N.  W.  230; 
R.  H.  Herron  Co.  v.  Mawby,  5  Cal.  App.  39,  89  Pac.  872.  See  "Payment;' 
Dec.  Di(j.   (Key-No.)  §§  16-23;    Cent.  Dig.  §§  63-90. 

2  CHELTENHAM  STONE  &  GRAVEL  CO.  v.  GATES  IRON  WORKS.  124 
111.  623,  16  N.  E.  923,  Throckmorton  Cas.  Contracts,  374 ;  Sayer  v.  Wagstaff, 
5  Beav.  423;  Robinson  v.  Read,  9  Barn.  &  C.  449;  Feldman  v.  Beier,  78  N. 
Y.  293 ;  The  Kimball,  3  Wall.  37,  18  L.  Ed.  50 ;  Bill  v.  Porter,  9  Conn.  23 ; 
Stewart  Paper  Mfg.  Co.  v.  Rau,  92  Ga.  511,  17  S.  E.  748 ;  Morriss  v.  Harveys, 
75  Va.  726 ;  Sayre  v.  King,  17  W.  Va.  562 ;  Shepherd  v.  Busch,  154  Pa.  149, 
26  Atl.  363,  35  Am.  St.  Rep.  815 ;  Sebastian  May  Co.  v.  Codd,  77  Md.  293,  26 
Atl.  316;  Akin  v.  Peters,  45  Ark.  313;  Belleville  Sav.  Bank  v.  Bornman.  124 
111.  200,  16  N.  E.  210 ;  Case  v.  Seass,  44  Mich.  195,  6  N.  W.  227 ;  First  Nat. 
Bank  v.  Case,  63  Wis.  504,  22  N.  W.  833;  A.  Leschen  &  Sons  Rope  Co.  v. 
Mayflower  S.  M.  &  R.  Co.,  173  Fed.  855,  97  C.  C.  A.  465,  35  L.  R.  A.  (N.  S.) 
1,  and  monographic  note;  Union  Biscuit  Co.  v.  Springfield  Grocer  Co.,  143 
Mo.  App.  300,  126  S.  W.  996,  Giving  receipt  in  full  is  not  sufficient  to-  rebut 
presumption  that  payment  was  conditional.  Johnson  v.  Weed,  9  Johns.  (N. 
Y.)  310,  6  Am.  Dec.  279.  But  the  presumption  is  reversed  where  the  note  of 
a  third  person  is  given  without  guaranty  or  indorsement,  on  account  of  a 
contemporaneous  debt.  Whitbeck  v.  Van  Ness,  11  Johns.  (N.  Y.)  409.  6  Am. 
Dec.  3S3;  Noel  v.  Murray,  13  N.  Y.  167;  Deford  v.  Dryden,  46  Md.  248; 
Bicknall  v.  Waterman,  5  R.  I.  43.  And  see  Ford  v.  Mitchell,  15  Wis.  304. 
But  see  Devlin  v.  Chamblin,  6  Minn.  468  (Gil.  325)  ;  Mclntyre  v.  Kennedy, 
29  Pa.  448.  In  Massachusetts  and  several  other  states  the  presumption  is 
that  the  instrument  was  intended  to  be  accepted  as  an  absolute  discharge. 
Dodge  v.  Emerson,  131  Mass.  407;  Mehan  v.  Thompson,  71  Me.  492;  Mason 
v.  Douglas,  6  Ind.  App.  558,  33  N.  E.  1009;  Smith  v.  Bettger,  08  Ind.  254, 
34  Am.  Rep.  256;  Teal  t.  Spangler,  72  Ind.  380;  Nixon  v.  Beard,  111  Ind. 
137,  12  N.  E.  131 ;  Hadley  v,  Bordo,  02  Vt.  285,  19  AU.  476.  These  various 
presumptions  may  be  rebutted  by  evidence  of  a  different  intention.  Norton, 
Bills  &  N.  (3d  Ed.)  19.  See  "I'ayment;'  Dec.  Dig.  (Key-No.)  §§  16-23;  Cent, 
mg.  §§  6S-90. 


548  DISCHARGE    OF    CONTRACT  (Ch.  11 

tract*     The  agreement  is  defeasible  upon  condition  subsequent; 
that  is,  upon  nonpayment  of  the  instrument  when  due. 

Payment,  then,  consists  in  the  performance  either  of  an  original 
or  substituted  contract  by  the  delivery  of  money,  or  of  negotiable 
instruments  conferring  the  right  to  receive  money;  and  in  this 
last  event  the  payee  may  have  taken  the  instrument  in  discharge 
of  his  right  absolutely,  or  subject  to  a  condition  (which  will  be 
presumed,  in  the  absence  of  expressions  to  the  contrary)  that, 
if  payment  be  not  made  when  the  instrument  falls  due,  the  par- 
ties revert  to  their  original  rights,  whether  those  rights  are,  so 
far  as  the  payee  is  concerned,  rights  to  the  performance  of  a 
contract,  or  rights  to  satisfaction  for  the  breach  of  one.* 

Application  of  Payments 

Where  a  person  owes  several  debts  to  another,  or  owes  on  an 
account  consisting  of  several  different  items,  and  makes  a  part 
payment,  the  question  arises  as  to  which  debt  is  discharged.  As 
a  rule,  the  debtor  has  a  right  to  say  which  debt  he  will  pay,  and 
he  may  show  his  intention  in  this  respect  by  his  conduct,  or  it 
may  otherwise  be  inferred  from  the  circumstances."  If  the  cred- 
itor receives  the  payment,  he  is  bound  to  apply  it  as  expressly  or 
impliedly  directed." 

If  the  debtor  does  not  direct  the  application,  at  the  time  of  the 

3  Sayer  v.  Wagstaff,  5  Beav.  423;  Happy  v.  Mosher,  48  N.  Y.  313;  Hall 
V.  Richardson,  16  Md.  396,  77  Am.  Dec.  303;  Lupton  v.  Freeman,  82  Mich. 
638.  46  N.  W.  1042 ;  Morrison  v.  Smith,  81  111.  221 ;  Fry  v.  Patterson,  49  N, 
J.  Law.  6,  12,  10  Atl.  390;  Hays  v.  McClurg.  4  Watts  (Pa.)  452;  Barnet  v. 
Smith,  30  N.  H.  256,  64  Am.  Dec.  290.  See.  also,  the  cases  cited  in  note  2, 
supra.     See  "Payment,"  Dec  Dig.   (Key-No.)  §§  16-23;    Cent.  Dig.  §§  63-90. 

*  Robinson  v.  Read,  9  Barn.  &  C.  449 ;  Sayer  v.  Wagstaff,  5  Beav,  415. 
See  "Payment,"  Dec.  Dig.  (Key-No.)  §  i;    Cent.  Dig.  §§  1,  S,  4,  24. 

6  Stone  V.  Seymour,  15  Wend.  (N.  Y.)  19 ;  Seymour  v.  Van  Slyck,  8  Wend. 
(N.  Y.)  403;  Tayloe  v.  Sandiford,  7  Wheat.  13,  5  L.  Ed.  384;  Fowke  v. 
Bowie,  4  Har.  &  J.  (Md.)  566;  Hansen  v.  Rounsavell,  74  III.  238;  Stewart  v. 
Keith,  12  Pa.  238 ;  Sawyer  v.  Tappan,  14  N.  IL  352 ;  Cavanagh  v.  Marble,  80 
Conn.  389,  68  Atl.  853,  15  L.  R.  A.  (N.  S.)  127.  See  "Payment,"  Dec.  Dig. 
(Key-No.)  §  S8;    Cent.  Dig.  §§  99-103,  12S. 

6  Patty  V.  Milne,  16  Wend.  (N.  Y.)  557;  Miln  v.  Patty,  22  Wend.  (N.  Y.) 
558;  Ellis  v.  Mason,  32  S.  C.  277,  10  S.  E.  1060;  Washington  Natural  Gas 
Co.  V.  Johnson,  123  Pa.  576,  16  Atl.  799,  10  Am.  St.  Rep.  553;  Atldnson  v. 
Cox,  54  Ark.  444,  16  S.  W.  124 ;  Stewart  v.  Hopkins,  30  Ohio  St.  502 ;  Weth- 
erell  v.  Jay,  40  Me.  325 ;  Chajnpenois  v.  Fort,  45  Miss.  355 ;  Runyan  v.  Lath- 
am, 27  N.  C.  551;  Benson  v.  Reinshagen,  75  N.  J.  Eq.  358,  72  Atl.  954  (al- 
though the  creditor  does  not  assent  to  such  application).  Cf.  Flarsheim  v. 
Brestrup,  43  Minn.  298,  45  N.  W.  43&  See  "Payment;'  Dec.  Dig.  (Key-No.) 
§  38;   Cent.  Dig.  §§  99-103,  128. 


§    238)  BY   PERFORMANCE  v       549 

payment/  the  creditor,  as  a  rule,  may  apply  it  as  he  may  see  fit.* 
He  may  apply  it,  for  instance,  to  a  debt  which  is  barred  by  the 
statute  of  limitations,  in  preference  to  another  which  is  not  barred.® 
Having  once  made  the  application,  he  cannot  change  it  without 
the  debtor's  consent.^^ 

If  neither  party  makes  an  appropriation  of  the  payment,  the 
law  will  apply  it.  According  to  the  civil  law,  the  presumable 
intention  of  the  debtor  was  resorted  to  as  the  rule  to  determine 
the^  application,  and,  in  the  absence  of  express  declaration  by 
either  party,  the  payment  was  applied  in  the  way  that  would  be 
most  beneficial  to  the  debtor.     "The  payment  was  consequently 

7  Pearce  v.  Walker,  103  Ala.  250,  15  South.  568.  See  "Payment,"  Dec.  Dig. 
(EdhNo.)  §  S9;    Cent.  Dig.  §§  lO^-llJf. 

s  Mayor,  etc.,  of  Alexandria  v.  Patten,  4  Cranch,  317,  2  L.  Ed.  633;  Hard-- 
ing  V.  Tifft,  75  N.  Y.  461 ;  First  Nat.  Bank  of  Fair  Haven  v.  Johnson,  65  Vt. 
382,  26  Atl.  634;  Whitaker  v.  Groover,  54  Ga.  174;  Jones  v.  Williams,  39 
Wis.  300;  Case  v.  Fant,  53  Fed.  41,  3  C.  C.  A.  418;  Henry  Bill  Pub.  Co.  v. 
Utley,  155  Mass.  366,  29  N.  E.  635 ;  Lee  v.  Early,  44  Md.  80 ;  Senter  v.  Wil- 
liams (Ark.)  17  S.  W.  1029;  Beck  v.  Haas,  111  Mo.  264,  20  S.  W.  19,  33  Am. 
St.  Rep.  516;  Howard  v.  McCall,  21  Grat.  (Va.)  205;  Perot  v.  Cooper,  17 
Colo.  80,  28  Pac.  391,  31  Am.  St.  Rep.  258;  Jefferson  v.  Church  of  St.  Mat- 
thevs',  41  Minn.  392,  43  N.  W.  74 ;  Byrnes  v.  Claffey,  69  Cal.  120,  10  Pac.  321 ; 
Koch  V.  Roth,  150  111.  212,  37  N.  E.  317.  The  creditor  cannot,  without  the 
debtor's  consent,  apply  the  payment  to  an  illegal  claim,  Anderson  v.  Griffith, 
51  Or.  116,  93  Pac.  934;  Phillips  v.  Moses,  65  Me.  70;  Pickett  v.  Bank,  32 
Ark.  346;  McCausland  v.  Ralston,  12  Nev.  195,  28  Am.  Rep.  781;  Caldwell 
V.  Wentworth,  14  N.  H.  431 ;  Bancroft  v.  Dumas,  21  Vt.  456 ;  Rohan  v.  Han- 
son, 11  Cush.  (Mass.)  44;  Kidder  v.  Norris.  18  N.  H.  532;  unless  the  debtor 
consents,  Brown  v.  Burns,  67  Me.  535;  Feldman  v.  Gamble,  26  N.  J.  Eq.  494. 
But  he  may  apply  it  to  a  debt  which  is  merely  unenforceable,  and  not  illegal. 
Haynes  v.  Nice,  100  Mass.  327,  1  Am.  Rep.  109 ;  Ayer  v.  Hawkins,  19  Vt.  26 ; 
Murphy  y.  Webber,  61  Me.  478.  He  cannot  apply  it  to  a  debt  not  yet  due. 
Heard  v.  Pulaski,  80  Ala.  502,  2  South.  343 ;  Bobe's  Heirs  v.  Stickney,  36  Ala. 
482.  May  apply  it  to  either  a  joint  or  an  individual  note  of  the  same  debtor. 
McBride  v.  Noble,  40  Colo.  372,  90  Pac.  1037,  13  Ann.  Cas.  1202.  The  appli- 
cation must  be  made  within  a  reasonable  time,  or  It  will  be  applied  by  law. 
Harker  v.  Conrad,  12  Serg.  &  R.  (Pa.)  301,  14  Am.  Dec.  691.  See  "Payment," 
Dec.  Dig.   (Ketj-^'o.)  §  SO:    Cent.  Dig.  §§  104-11  J,. 

»  Jackson  v.  Burke,  1  Dill.  311,  Fed.  Cas.  No.  7,133  ;  Ayer  v.  Hawkins,  19 
Vt.  26;  Williams  v.  Griffith,  5  Mees.  &  W.  300;  Waugh  v.  Cope,  6  Mees.  & 
W.  824;  Murphy  v.  Webber,  61  Me.  478;  Pond  v.  Williams,  1  Gray  (Mass.) 
630;  Ramsay  v.  Warner,  97  Mass.  8;  Beck  v.  Haas,  31  Mo.  App.  180.  But 
see  Beck  v.  Haas,  111  Mo.  264,  20  S.  W.  19,  33  Am.  St.  Rep.  516.  See  "Pay- 
ment." Dec.  Dig.   (Key-No.)  §  39;    Cent.  Dig.  §§  lO^-lVi. 

10  Offutt  V.  King,  1  MacArthur  (D.  C.)  312;  Pearce  v.  Walker,  103  Ala.  250, 
15  South.  .568;  Cromer  v.  Higginson,  1  Mason,  337,  Fed.  Cas.  No.  3,3&3 ;  Mc- 
Master  v.  Merrick,  41  Mich.  505,  2  N.  W.  895.  Nor  can  the  creditor  be  com- 
pelled to  change  the  application.  Jefferson  v.  Church  of  St.  Matthew,  41 
Minn.  392,  43  N.  W.  74;  Seymour  v.  Marvin,  11  Barb.  (N.  Y.)  80.  See  "Pay- 
ment," Dec.  Dig.  (Key-No.)  §  39;    Cent.  Dig.  §§  10J,-1H. 


555  ^  DISCHARGE    OP    CONTRACT  (Ch.  11 

applied  to  the  most  burdensome  debt — to  one  that  carried  interest, 
rather  than  to  that  which  carried  none ;  to  one  secured  by  a 
penalty,  rather  than  to  that  which  rested  on  a  simple  stipulation ; 
and,  if  the  debts  were  equal,  then  to  that  which  had  been  first 
contracted."  ^^  This  rule  has  been  adopted  in  a  number  of  cases 
both  in  England  and  in  this  country.  In  a  well-considered  New 
York  case  the  rule  was  approved  after  a  full  review  of  the  author- 
ities, and  a  payment  was  applied  to  a  mortgage  and  a  judgment 
debt  in  preference  to  an  account,  because  the  former  would  bear 
most  heavily  on  the  debtor.^^  Many  of  the  courts,  on  the  other 
hand,  have  adopted  a  rule  to  some  extent  directly  opposed  to  the 
civil-law  rule.  "If  the  application  is  made  by  neither  party,",  it 
has  been  said  by  the  supreme  court  of  the  United  States,  "it 
becomes  the  duty  of  the  court,  and  in  its  exercise  a  sound  dis- 
cretion is  to  be  exercised.  It  cannot  be  conceded  that  this  appli- 
cation is  to  be  made  in  a  manner  most  advantageous  to  the  debtor. 
*  *  *  It  would  seem  reasonable  that  an  equitable  application 
should  be  made;  and,  it  being  equitable  that  the  whole  debt 
should  be  paid,  it  cannot  be  inequitable  to  extinguish  first  those 
debts'  for  which  the  security  is  most  precarious."  In  this  case 
the  payment  was  applied  to  other  demands  rather  than  to  a  judg- 
ment debt,  on  the  ground  that  the  former  were  not  so  well  se- 
cured.^^  Probably  most  of  the  courts  in  this  country  follow  the 
rule  just  stated,  though  with  some  qualification.  It  is  very  gen- 
erally said  that  an  equitable  application  will  be   made;    that   is, 

11  Devaynes  v.  Noble  (Clayton's  Case)  1  Mer.  572,  606.  See  "Payment" 
Dec.  Dig.   (^Key-'So.)  §  1,1;    Cent.  Dig.  §§  115-126. 

12  Pattison  v.  Hull,  9  Cow.  (N.  Y.)  747.  And  see  Bacon  v.  Brown,  1  Bibb 
(Ky.)  334,  4  Am.  Dec.  640;  Jones  v.  Benedict,  83  N.  Y.  79;  Hey  ward  v.  Lo- 
max,  1  Vern.  24 ;  Prowse  v.  Worthinge,  2  Brown  &  G.  107 ;  Neal  v.  Allison, 
50  Miss.  175;  Gwinn  v.  Whitaker's  Adm'x,  1  Har.  &  J.  (Md.)  754;  Dorsey 
V.  Gassaway,  2  Har.  &  J.  (Md.)  402,  3  Am.  Dec.  557;  Perot  v.  Cooper,  17 
Colo.  SO,  28  Pac.  391,  31  Am.  St.  Rep.  258 ;  Robinson  v.  Doolittle,  12  Yt.  246 ; 
Moore  v.  Kiff,  78  Pa.  96;  Barrett  v.  Sipp,  50  Ind.  App.  304,  98  N.  E.  340. 
See  "Payment,"  Dec.  Dig.   (Key-Mo.)  §  Jil ;    Cent.  Dig.  §§  115-126. 

13  Field  V.  Holland,  6  Cranch,  27,  3  L.  Ed.  136.  And  see  Burks  v.  Albert, 
4  J.  J.  Marsh.  (Ky.)  97,  20  Am.  Dec.  209;  Gardner  v.  Leek,  52  Minn.  522,  54 
N.  W.  746 ;  Leeds  v.  Gifford,  41  N.  J.  Eq.  464,  5  Atl.  795 ;  The  D.  B.  Steel- 
man  (D.  C.)  48  Fed.  580;  Stamford  Bank  v.  Benedict,  15  Conn.  437;  Hilton 
V.  Burley,  2  N.  H.  193 ;  Cain  v.  Vogh,  138  Iowa,  631,  116  N.  W.  786,  128  Am. 
St.  Rep.  210.  In  a  later  case,  under  the  same  rule  (the  rule  of  equitable  ap- 
plication), the  payments  were  so  applied  as  to  operate  beneficially  to  the 
sureties  of  the  debtor,  and  against  the  creditor.  United  States  v.  Kirkpat- 
rick,  9  Wheat  737,  6  L.  Ed.  199.  If  the  money  paid  is  the  proceeds  of  a  se- 
curity given  for  one  debt,  it  will  be  applied  in  payment  of  that  debt  in  pref- 
erence to  an  unsecured  debt.  Lee  v.  Manley,  154  N.  C.  244,  70  S.  E.  385. 
See  "Payment,"  Dec.  Dig.  {Key-Mo.)  §  Jtl;    Cent.  Dig.  §§  115-126. 


§    238)  •  BY  PERFORMANCE  551 

that  the  payment  will  be  applied  according  to  the  justice  of  the 
particular  case,  in  view  of  all  the  circumstances.^*  Such  a  rule 
is  not  very  definite.  Is  it  more  equitable  to  give  effect  to  the 
civil-law  rule,  and  apply  the  payment  as  would  be  most  beneficial 
to  the  debtor,  or  to  follow  the  opposite  rule,  and  consider  the 
creditor's  interests?  The  Minnesota  court,  in  stating  the  rule, 
has  thus  qualified  it:  "It  is  true  that,  where  the  parties  have  not 
made  any  specific  application  of  payments,  courts  will  make  it 
according  to  the  justice  and  equity  of  the  case;  but  in  doing  so 
they  are  governed  by  certain  general  and  established  rules,  and 
are  not  at  liberty  to  adopt  their  own  notions  of  what  may  be  just 
and  equitable  in  each  particular  case."  ^^  One  of  these  rules  is 
that,  where  there  is  but  one  continuous  account  of  several  items, 
"the  payments  will  be  applied  on  the  account  according  to  the 
priority  of  time — that  is,  the  first  item  on  the  debit  side  is  dis- 
charged or  reduced  by  the  first  item  on  the  credit  side;"^®  and 
so,  where  there  are  several  debts  of  equal  dignity,  a  payment  will 
generally  be  applied  to  the  oldest. ^^  As  we  have  seen,  when  we 
get  beyond  this,  there  is  a  conflict  of  opinion.^* 

14  Smith  V.  Loyd,  11  Leigh  (Va.)  512,  37  Am.  Dec.  621 ;  Stone  v.  Seymour, 
15  Weud.  (N.  Y.)  19;  White  v.  Trumbull,  15  N.  J.  Law,  314,  29  Am.  Dec. 
687;  Allen  v.  Culver,  3  Denio  (N.  Y.)  284;  Pierce  v.  Knight,  31  Vt.  701; 
Crompton  v.  Pratt,  105  Mass.  255.  See  "Payincnt,"  Dec.  Dig.  (Key-No.)  §  41; 
Cent.  Dig.  §§  115-126. 

15  Hersey  v.  Bennett,  28  Minn.  86,  9  N.  W.  590,  41  Am.  Rep.  271.  And  see 
Miller  v.  Miller,  23  Me.  22,  39  Am.  Dec.  597;  P>obe's  Heirs  v.  Stickney,  36 
Ala.  482.     See  "Payment;'  Dec.  Dig.   (Key-No.)   §  41;    Cent.  Dig.  §§  115-126. 

16  Hersey  v.  Bennett,  28  Minn.  86,  9  N.  W.  590,  41  Am.  Rep.  271.  And  see 
Peale  v.  Grossman,  70  W.  Va.  1,  73  S.  E.  46,  Ann.  Cas.  1913G,  1373.  See 
"Payment;'  Dec.  Dig.  (Key-No.)  §  4I;    Cent.  Dig.  §§  115-126. 

17  Devaynes  v.  Noble  (Clayton's  Case),  1  Mer.  572;  Hersey  v.  Bennett,  28 
Minn.  86,  9  N.  W.  590,  41  Am.  Rep.  271 ;  Miller  v.  Miller,  23  Me.  22,  39  Am. 
Dec.  597 ;  Parks  v.  Ingram,  22  N.  H.  283,  55  Am.  Dec.  153 ;  Pierce  v.  Knight, 
31  Vt  701;  Crompton  v.  Pratt,  105  Mass.  255;  Smith  v.  Loyd,  11  Leigh 
(Va.)  512,  37  Am.  Dec.  621 ;  Hill  v.  Bobbins,  22  Mich.  475 ;  Winnebago  Mills 
T.  Travis,  56  Minn.  480,  58  N.  W.  30 ;  Cushing  v.  Wyman,  44  INIe.  121 ;  Fair- 
child  V.  Holly,  10  Conn.  175;  Truscott  v.  King,  6  N.  Y.  147;  Jones  v.  United 
States,  7  How.  681,  12  L.  Ed.  870;  United  States  v.  Kirkpatrick,  9  Wheat. 
720,  6  L.  Ed.  199;  Emery  v.  Tichout,  13  Vt.  15;  Frazer  v.  Miller,  7  Wash. 
521,  35  Pac.  427 ;  Steruberger  v.  Gowdy,  93  Ky.  140,  19  S.  W.  186 ;  Sprague 
V.  Hazenwinkle,  53  111.  419.  In  Kansas  this  rule  yields  to  the  rule  that  a 
payment  will  be  applied  to  an  unsecured  rather  than  to  a  secured  debt. 
State  V.  United  States  Fidelity  &  Guaranty  Co.,  81  Kan.  060,  106  Pac.  1040, 
26  L.  R.  A.  (N.  S.)  865.  See  "Payment;'  Dec.  Dig.  (Key-No.)  §  4S;  Cent. 
Dig.  §  122. 

18  Payment  will  be  applied  in  extinguishment  of  a  certain,  rather  than  a 
contingent,  liability  (President,  etc.,  of  Niagara  Bank  v.  Rosevelt,  9  Cow.  [N. 
Y.]  409;    President,  etc.,  of  Bank  of  Portland  v.  Brown,  22  Me.  295),  and  to 


552  DISCHARGE    OF    CONTRACT  •  (Ch.  11 

Where  a  partial  payment  on  an  interest-bearing  debt  exceeds 
the  interest  due,  it  must  be  applied  first  in  discharge  of  the  inter- 
est and  the  remainder  in  reduction  of  the  principal;  and  if  the 
payment  is  less  than  the  interest,  it  is  to  be  applied  on  the  interest, 
but  the  remainder  of  interest  is  not  to  increase  the  principal.^' 


SAME— TENDER 

239.  Tender  is  an  offer  or  attempt  to  perform,  and  may  be  either — 

(a)  An  offer  to  do  something  promised,  in  which  case  the  offer, 

and  its  refusal  by  the  promisee,  discharge  the  promisor 
from  the  contract. 

(b)  An  offer  to  pay  something  promised,  in  which  case  the  offer, 

and  its  refusal  by  the  promisee,  do  not  discharge  the  debt, 
but  prevent  the  promisee  from  recovering  more  than  the 
amount  tendered,  and  in  an  action  by  the  promisee  entitle 
the  promisor  to  recover  the  costs  of  his  defense. ^^ 

"Tender"  is  an  attempted  performance.  The  word  is  applied 
to  performance  of  two  kinds:  (1)  To  performance  of  a  promise 
to  do  something;  and  (2)  to  performance  of  a  promise  to  pay 
something, — and  the  effect  of  the  attempt  at  performance  in  the 
two  cases  is  different.  In  both  cases  the  performance  is  frustrated 
by  the  act  of  the  party  for  whom  it  is  to  take  place. 

Where,  in  a  contract  for  the  sale  of  goods,  the  vendor  satisfies 
all  the  requirements  of  the  contract  as  to  delivery,  and  the  pur- 
chaser nevertheless  refuses  to  accept  the  goods,  the  vendor  is 
discharged  by  such  a  tender  of  performance,  and  may  either  main- 
tain or  defend  successfully  an  action  for  the  breach  of  the  con- 
tracts^ Where,  however,  the  performance  due  consists  in  the 
payment  of  a  sum  of  money,  a  tender  by  the  debtor,  although  it 

extinguish  an  existing  debt,  rather  than  a  debt  not  yet  due  (Baker  v.  Stack- 
poole,  9  Cow.  [N.  Y.]  420,  18  Am.  Dec.  508;  Kline  v.  Ragland,  47  Ark.  Ill, 
14  S.  W.  474;  Heard  v,  Pulaski,  SO  Ala.  502,  2  South.  343;  Bobe's  Heirs  v. 
Stickney,  36  Ala.  482),  although  the  debt  not  due  was  the  first  contracted 
(Briggs  V.  Steel,  91  Ark.  458,  121  S.  W.  754).  See  "Payment"  Dec.  Dig. 
{Key-No.)  §  J,S;   Cent.  Dig.  §  122. 

19  Christie  v.  Scott,  77  Kan.  257,  94  Pac.  214.  See  "Payment;'  Dec.  Dig. 
(Key-No.)  §  ^2;   Cent.  Dig.  §  121. 

2  0  Anson,  Cont.   (4th  Ed.)  274,  275. 

21  Startup  V.  Macdouald,  6  Man.  &  G.  593 ;  Benj.  Sales,  363 ;  Lamb  v. 
Lathrop,  13  Wend.  (N.  Y.)  95,  27  Am.  Dec.  174;  Phelps  v.  Hubbard,  51  Vt 
489;  Oelrichs  v.  Artz,  21  Md.  .524;  Berry  v.  Nail,  54  Ala.  446;  Mitchell  v. 
Merrill,  2  Blackf.  (lud.)  87,  IS  Am.  Dea  128.  See  "Sales,"  Dec.  Dig.  {Key- 
No.)  §  153;    Cent.  Dig.  §§  S58-SG6. 


§    239)  BY  TERFORMANCB  553 

may  constitute  a  good  defense  to  an  action  by  the  creditor,  does 
not  discharge  the  debt.^^  If  the  creditor  will  not  take  the  money 
when  it  is  due  and  is  tendered  him,  he  puts  himself  at  a  disadvan- 
tage if  he  should  attempt  to  recover  it  by  action.  While  the  debt  is 
not  discharged,  the  running  of  interest  is  stopped,  and  the  creditor 
loses  the  right  to  any  lien  or  other  benefit  incidental  or  accessory 
to  the  debt.^^  The  debtor,  to  defend  successfully  by  pleading 
the  tender,  must  continue  always  ready  and  willing  to  pay  the 
debt,  or,  as  it  is  said,  the  tender  must  be  kept  good,^*  and  when 
he  is  sued,  and- pleads  the  tender,  he  must,  in  most  jurisdictions, 
pay  the  money  into  court.*'  If  the  plea  is  sustained,  the  creditor 
gets  nothing  but  what  was  originally  tendered  him,  and  the  debtor 
gets  judgment  for  his  costs,  so  that  he  is  placed,  as  nearly  as 
can  be,  in  as  good  a  position  as  he  held  at  the  time  of  the  tender.*** 
A  tender  and  payment  of  money  into  court,  even  if  it  is  not  ac- 
cepted, operates  as  an  absolute  transfer  of  the  money  to  the  cred- 
itor.*^ Even  if  the  judgment  is  for  a  less  sum,  or  is  for  the 
debtor,  the  title  to  the  money  has  passed  to  the  creditor,  ^nd  the 
court  may  not  make  an  order  in  the  same  action  for  the  retransfer 
of  the  title.  Relief  from  mistake  or  fraud  may  be  had,  if  at  all, 
only  in  an  independent  action  brought  for  the  purpose.** 

Tender,  to  be  a  valid  performance  to  this  extent,  must  observe 

22  Dixon  V.  Clarke,  5  C.  B.  376.  See  ''Tender,"  Dec.  Dig.  {Key-tJo.)  §  19; 
Cent.  Dig.  §§  59-61. 

23  Kortright  v.  Cady,  21  N.  T.  343,  78  Am.  Dec.  145 ;  Murray  v.  O'Brien, 
56  Wash.  361,  105  Pac.  840,  28  L.  R.  A.  (N.  S.)  998.  See  "Tender,"  Dec.  Dig. 
(Key-No.)   §  19;    Cent.  Dig.  §§  59-67. 

24  Healy  v.  Protection  Mut.  Fire  Ins.  Co.,  213  111.  99,  72  N.  E.  678.  See 
"Tender,"  Dec.  Dig.   (Key-No.)   §  18;    Cent.  Dig.  §§  55-58. 

2  5  Dixon  V.  Clarke,  5  C.  B.  376;  Aulger  v.  Clay.  109  111.  487;  Illinois  v. 
Railroad  Co.  (C.  C.)  33  Fed.  730;  Rice  v.  Kahn,  70  Wis.  323,  35  N.  W.  465; 
Becker  v.  Boon,  61  N.  Y.  317 ;  Taylor  v.  Railroad  Co.,  119  N.  Y.  561,  23  N.  B. 
1106 ;  Columbian  Bklg.  Ass'n  of  East  Baltimore  No.  4  v.  Cinirap,  42  Md.  192 ; 
Bissell  V.  Heyward,  96  U.  S.  580,  24  L.  Ed.  678 ;  Roberts  v.  White,  146  Mass. 
256,  15  N.  E.  568;  Conimercial  Fire  Ins.  Co.  v.  Allen,  80  Ala.  571,  1  South. 
202.  While  at  law  the  rule  that  a  tender  must  be  kept  good  by  payment  into 
court  is  well-nigh  universal,  in  equity  this  will  not  be  required  where  It 
would  work  injustice  to  the  debtor  or  give  the  creditor  an  unconscionable  ad- 
vantage. Kortright  v.  Cady,  21  N.  Y.  343,  78  Am.  Dee.  145 ;  Mun-ay  v.  O'Bri- 
en, 56  Wash.  361,  105  Pac.  840,  28  L.  R.  A.  (N.  S.)  998.  See  "Tender,"  Dec. 
Dig.   (Key-No.)   §  IS;    Cent.  Dig.  §§  55-5S. 

26  Cornell  v.  Green,  10  Serg.  &  R.  (Pa.)  14.  See  "Tender,"  Dec.  Dig.  (Key- 
No.)  §  19;    Cent.  Dig.  §§  59-67;    "Costs,"  Cent.  Dig.  §  1J,G. 

27  Mann  v.  Sprout,  185  N.  Y.  109,  77  N.  E.  1018,  5  L.  R.  A.  (N.  S.)  561,  7 
Ann.  Cas.  95.     See  "Tender,"  Dec.  Dig.   (Key-No.)  §  26;    Cent.  Dig.  §§  88-95. 

2  8  Mann  v.  Sprout,  supra.  See  "Tender,"  Dec.  Dig.  (Key-No.)  §§  26,  27; 
Cent.  Dig.  §§  88-93. 


554  DISCHARGE    OF    CONTRACT  (Ch.  11 

exactly  any  special  terms  which  the  contract  may  contain  as  to 
time,  place,  and  mode  of  payment.^^  Further  than  this,  the  tender 
must  be  an  offer  of  money  produced,  or  at  least  made  accessible 
to  the  creditor.^'*  Tender  of  a  check,^^  even  though  it  is  certi- 
fied,^^ is  not  sufficient;  but  if  the  tender  is  refused  by  the  cred- 
itor on  other  grounds,  he  will  be  considered  as  having  waived 
objection  on  the  ground  that  it  was  by  check.^^ 

The  debtor  must  also  have  the  money  with  him;  but  its 
actual  production  may  be  waived  by  the  creditor,  not  only  ex- 
pressly, but  impliedly,  as  where,  before  it  is  produced,  he  declares 
that  he  will  not  receive  it.^*  It  need  not  necessarily  be  of  the 
exact  sum,^'^  but  it  must  be  of  such  a  sum  that  the  creditor  can 
take  exactly  what  is  due  without  being  called  upon  to  give 
change.^^     The  tender  must  be  made  by  the  person  whose  duty 

2»Noyes  v.  Wyckoff,  114  N.  Y.  204,  21  N.  E.  15S;  Abshire  v.  Corey,  113 
Ind.  484,  15  N.  E.  6S5 ;  People's  Sav.  Bank  v.  Borough  of  Norwalk,  5G  Conn. 
547,  16  Atl.  257;  Tillou  v.  Brittou.  9  N.  J.  Law,  120;  Hubbard  v.  Bank,  8 
Cow.  (N.  Y.)  88.  -See  "Tender,"  Dec.  Dig.  (Key-yo.)  §§  11,  13;  Cent.  Dig. 
§§  20,  20-32. 

so  Leask  v.  Dew,  102  App.  Div.  529,  92  N.  Y.  Supp.  891.  While  the  creditor 
may  require  legal  tender  money,  a  tender  in  other  lawful  money  of  the 
United  States  is  sufficient,  if  not  objected  to  on  the  ground  of  its  not  being 
legal  tender.  Edmunds  Electric  Const.  Co.  v.  Mariotte,  1G2  Ind.  829,  09  N. 
E.  396.     See  ''Tender,"   Dec.  Dig.   {Kcy-Xo.)    §  13;    Cent.  Dig.  §§  29-32. 

31  Te  Poel  V.  Shutt,  57  Neb.  592,  78  N.  W.  288.  See  ''Tender,  Dec.  Dig. 
(Key-No.)  §  13;    Cent.  Dig.  §§  29-32. 

3  2  Barbour  v.  Hickey,  2  App.  D.  C.  207,  24  L.  R.  A.  763.  See  "Tender," 
Dec.  Dig.   (Key-yo.)   §  13;    Cent.  Dig.  §§  29-32. 

83  Beatty  v.  Miller,  47  Ind.  App.  494,  94  N.  E.  897 ;  Neal  v.  Finley,  136  Ky. 
346,  124  S.  W.  348 ;  Kollitz  v.  Equitable  Mut.  Fire  Ins.  Co.,  92  Minn.  234,  99 
N.  W.  892 ;  Gunby  v.  Ingram,  57  Wash.  97,  106  Pac.  495,  36  L.  R.  A.  (N.  S.) 
232;  McGrath  v.  Gegner,  77  Md.  331,  26  Atl.  502,  39  Am.  St.  Rep.  415.  And 
see  Walsh  v.  Association,  101  Mo.  534,  14  S.  W.  722 ;  Gradle  v.  Warner,  140 
111.  123,  29  N.  E.  1118.  -See  "Tender,"  Dec.  Dig.  (Key-Xo.)  §  15;  Cent.  Dig.  §§ 
39-46. 

34  Hazard  v.  Loring.  10  Cush.  (Mass.)  207 ;  Hall  v.  Insurance  Co.,  57 
Conn.  105,  17  Atl.  356;  Parker  v.  Pettit,  43  N.  J.  Law,  512;  Collier  v. 
White.  67  Miss.  133,  6  South.  618;  Mathis  v.  Thomas,  101  Ind.  119;  Knight 
V.  Abbott,  30  Vt.  577;  Pinney  v.  Jorgenson,  27  Minn.  26,  6  N.  W.  376; 
Larsen  v.  Breene,  12  Colo.  480,  21  Pac.  498 ;  Guthman  v.  Keam,  8  Neb.  502, 
1  N.  W.  129;  Behaly  v.  Hatch,  Walk.  (Miss.)  3G9,  12  Am.  Rep.  570;  Oak- 
land Bank  of  Savings  v.  Applegarth,  67  Cal.  86,  7  Pac.  139,  476;  Dungan 
V.  Insurance  Co.,  46  Md.  469.  -See  "Tender,"  Dec.  Dig.  (Eey-Xo.)  §  13; 
Cent.  Dig.  §§  29-32. 

8  5  Walsh  V.  ColvIn,  53  Wash.  309,  101  Pac.  1085.  -See  "Tender,"  Dec.  Dig. 
(Key-No.)  §  IS;   Cent.  Dig.  §§  29-32. 

8  6  Betterbee  v.  Davis,  3  Camp.  70;  Robinson  v.  Cook,  6  Taunt.  330;  Fridge 
V.  State,  3  Gill  &  J.  (Md.)  103,  20  Am.  Dec.  463;  Weld  v.  Bank,  158  Mass. 
339,  33  N.  E.  519;    Brandt  v.  Railroad  Co.,  26  Iowa,  114;   Patnote  v.  Sanders, 


§    239)  BY   PERFORMANCE  555 

it  is  to  pay,  or  by  his  agent,  and  not  by  a  mere  stranger  or  inter- 
meddler;*^  and  it  must  be  made  to  the  party  entitled  to  receive 
payment,  or  to  his  duly-authorized  agent;  ^*  and  it  must  be  under- 
stood as  a  tender,  and  be  absolute  and  unconditional,*®  It  has 
also  been  held  that  the  tender  must  be  made  at  a  reasonably  fit 

41  Vt  66,  98  Am.  Dec.  564;  Patterson  v.  Cox,  25  Ind.  2G1 ;  Perkins  v. 
Beck,  4  Cranch  C.  C.  GS,  Fed.  Cas.  No.  10,9S4.  A  tender  of  9  cents  less  than 
$584.32  due  has  been  held  insufficient.  Eolfe  v.  Patrons'  Androscoggin  Mut. 
Fire  Ins.  Co.,  106  Me.  345,  76  Atl.  879.  But  failure  to  include  three  days' 
interest  on  $40,  amounting  to  2  cents,  has  been  held  immaterial,  on  the 
theory  that  the  law  does  not  consider  trifles.  Matzger  v.  Page,  62  Wash. 
170,  113  Pac.  254.  See  '-Tender,"  Dec.  Dig.  (Key-No.)  §  13;  Cent.  Dig.  §§ 
29-32. 

3  7  Sinclair  v.  Learned,  51  Mich.  335,  16  N.  W.  672;  Kincaid  v.  School 
Dist,  11  Me.  188;  Brown  v.  Dysinger,  1  Rawle  (Pa.)  408;  Mahler  v.  New- 
baur,  32  Cal.lGS,  91  Am.  Dec.  571;  McDougald  v.  Dougherty,  11  Ga.  570; 
Johnson  v.  Smock,  1  N.  J.  Law,  106.  See  ''Tender,"  Dec.  Dig.  {Key-No.)  §  6; 
Cent.  Dig.  §  8. 

38  Carman  v.  Pultz,  21  N.  Y.  547;  Wilson  v.  Doran,  110  N.  Y.  101,  17  N. 
E.  688;  Oatman  v.  Walker,  33  Me.  67;  King  v.  Finch,  60  Ind.  420;  Mc- 
Iniffe  V.  Wheelock,  1  Gray  (Mass.)  600;  Conrad  v.  Trustees  of  Grand 
Grove,  64  Wis.  258,  25  N.  W.  24;  Billiot  v.  Robinson,  13  La.  Ann.  529;  Iloyt 
V.  Byrnes,  11  Me.  475;  Cropp  v.  Hambleton,  Cro.  Eliz.  48;  Carmen  v. 
Pultz,  supra.  Tender  to  one  of  several  joint  creditors  sufficient  Oatman 
V.  Walker,  supra;  Dawson  v.  Ewing,  16  Serg.  &  R.  (Pa.)  371;  Flanigan 
V.  Seelye,  53  Minn.  23,  55  N.  W.  115.  See  "Tender,"  Deo.  Dig.  (Key-No.) 
§  7;   Cent.  Dig.  §§  9,  10,  22. 

3  9  Hunter  v.  Warner,  1  Wis.  141;  Potts  T.  Plaisted,  30  Mich.  149;  Tomp- 
kins V.  Batie,  11  Neb.  147,  7  N.  W.  747,  38  Am.  Rep.  361 ;  Noyes  v.  Wyckoff, 
114  N.  Y.  204,  21  N.  E.  158;  Pulsifer  v.  Shepard,  36  111.  513;  Odum  v. 
Railroad  Co.,  94  Ala.  488,  10  South.  222;  Brooklyn  Bank  v.  De  Grauw,  23 
Wend.  (N.  Y.)  342,  35  Am.  Dec.  5G9 ;  Appeals  of  Forest  Oil  Co.,  118  Pa. 
138,  12  Atl.  442,  4  Am.  St.  Rep.  584 ;  Rives  v.  Dudley,  56  N.  C.  126,  07  Am. 
Dec.  231;  Henderson  v.  Cass  County,  107  Mo.  50,  18  S.  W.  992;  Cothran 
V.  Scanlan,  34  Ga.  555;  Rose  v.  Duncan,  49  Ind.  2G9.  Where  the  amount 
is  disputed,  an  offer  of  less  than  the  creditor  claims,  on  condition  that  it  be 
accepted  in  discharge  of  the  debt,  is  not  a  valid  tender,  though  no  more 
than  offered  be  due.  Thomas  v.  Evans,  10  East,  101 ;  Wood  v.  Hitchcock, 
20  Wend.  (N.  Y.)  47;  Thayer  v.  Brackett,  12  Mass.  450;  Richardson  v. 
Laboratory,  9  Mete.  (Mass.)  42;  Chapin  v.  Chapin  (Mass.)  36  N.  E.  746; 
Elderkin  v.  Fellows,  60  Wis.  339,  19  N.  W.  101 ;  Draper  v.  Hitt,  43  Vt  439, 
5  Am.  Rep.  292;  MOORE  v.  NORMAN,  52  Minn.  S3,  53  N.  W.  809,  18  L. 
R.  A.  359,  38  Am.  St  Rep.  520,  Throckmorton  Cas.  Contracts,  376;  Doty 
V.  Crawford,  39  S.  C.  1,  17  S.  E.  377;  Latham  v.  Hartford,  27  Kan.  249; 
Commercial  Fire  Ins.  Co.  v.  Allen,  80  Ala.  571,  1  South.  202.  Tender  under 
protest  reserving  right  to  dispute  ajnount  due,  is  good,  if  it  docs  not  im- 
po.se  conditions  on  creditor.  Greenwood  v.  Sutcliffe  [1S92]  1  Cli.  1.  Tender 
of  amount  due  on  a  mortgage  is  not  rendered  invalid  by  fact  that  it  is 
accompanied  by  condition  that  the  mortgage  be  satisfied,  since  the  condi- 
tion is  one  which  the  mortgagee,  on  being  paid,  is  bound  to  perform.  I  la  I  pin 
V.  Insurance  Co.,  118  N.  Y.  1G5,  23  N.  E.  4S2.     Contra,   Loriug  v.  Cooke,  3 


556  DISCHARGE    OF    CONTRACT  (Ch.  11 

time  and  place.*'  And  if  no  place  is  fixed  by  law  or  by  the  terms 
of  the  contract,  and  the  creditor  is  in  the  state,  it  is  the  duty  of 
the  debtor  to  seek  the  creditor  and  tender  payment  where  he  is.*^ 
The  law,  however,  does  not  require  a  useless  thing,  and  a  formal 
tender  is  therefore  unnecessary  where  the  creditor  by  his  decla- 
rations or  conduct  has  clearly  indicated  that  it  will  be  refused.*' 
So,  also,  where  goods  are  tendered  in  compliance  with  a  con- 
tract of  sale,  the  tender  must  comply  with  all  the  terms  of  the 
contract.  An  offer  to  deliver  a  greater  or  a  less  quantity  than 
the  contract  calls  for,  is  not  a  valid  tender.*'  It  is  also  necessary 
that  the  buyer  shall  be  given  an  opportunity  to  examine  them  if 
he  chooses,  so  that  he  may  satisfy  himself  that  they  comply  with 
the  terms  of  the  contract;  otherwise,  he  does  not  break  the  con- 
tract by  refusing  to  accept  them,** 


DISCHARGE  OF  CONTRACT  BY  BREACH— IN  GENERAL 

240,  Breach  of  contract  is  where  a  party  thereto  breaks  through 

the  obligation  which  it  imposes, 

241.  The  effect  of  a  breach  of  contract  is  that — 

(a)  It  always  gives  the  party  injured  a  right  of  action, 

(b)  It  often,  but  not  always,  discharges  the  contract.     This  de- 

pends upon  circumstances  to  be  presently  discussed. 

If  one  of  the  parties  to  a  contract  breaks  through  the  obligation 
which  it  imposes,  a  new  obligation  arises  in  every  case — a  right 

Pick.  (Mass.)  48;  Lindsay  v.  Matthews,  17  Fla.  575.  See  Jones,  Mortg.  § 
900.  Tender  to  pledgee  of  amount  secured  is  not  vitiated  by  condition  that 
pledge  be  delivered.  Loughborough  v.  McNevin,  74  Cal.  250,  14  Pac.  369,  15 
Pac.  773,  5  Am.  St.  Rep.  435,  See  ''Tender,"  Dec.  Dig.  (Key-^o.)  §  14; 
Cent.  Dig.  §§  SS-S8. 

*o  Waldron  v.  Murphy,  40  Mich.  668.  See  "Tender,"  Dec.  Dig.  (Key-No.) 
§§  8,  9;   Cent.  Dig.  §§  11-19. 

*i  Berley  &  Kyzer  v.  Columbia,  N.  &  L.  R.  Co.,  82  S.  C.  232,  64  S.  E.  397. 
See  "Tender,"  Dec.  Dig.  (Key-No.)   §  8;    Cent.  Dig.  §§  11,  12. 

42  Weinberg  v.  Naher,  51  Wash.  591,  99  Pac.  736,  22  L.  R.  A,  (N.  S.)  956. 
See  "Tender,"  Dec.  Dig.  (Key-No.)  §§  J,,  5;   Cent.  Dig.  §§  5-7. 

4»  Dixon  V.  Fletcher,  3  Mees.  &  W.  146;  Plart  v.  Mills,  15  Mees.  &  W.  85; 
Curliffe  v.  Harrison,  6  Exch.  903 ;  Perry  v.  Iron  Co.,  16  R.  I,  318,  15  Atl.  87 ; 
Rommel  v,  Wiugate,  103  Mass.  327;  Croninger  v.  Crocker,  02  N.  Y.  151; 
Tiflfany,  Sales,  187.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  153;  Cent.  Dig.  §§ 
358-366. 

**  Isherwood  v.  Whitmore,  10  Mees.  &  W,  757;  Wyman  v.  Winslow,  11 
Me.  398,  26  Am.  Dec.  542;  Holmes  v.  Gregg,  66  N.  H.  621,  28  Atl.  17; 
Tiffany,  Sales,  197.  See  "Sales"  Dec.  Dig.  (Key-No.)  §  153;  Cent.  Dig.  g§ 
S58-S66. 


'>^3-  -.c,  ^ 


%l  243-244)  BY  BREACH  557 

of  action  conferred  upon  the  party  injured  by  the  breach.  Besides 
this,  there  are  circumstances  under  which  the  breach  will  dis- 
charge the  injured  party  from  such  performance  as  may  still  be 
due  from  him.  Every  breach  of  contract  confers  the  right  of 
action  upon  the  injured  party,  but  every  breach  does  not  neces- 
sarily discharge  him  from  doing  what  he  has  undertaken  to  do 
under  the  contract.  The  contract  may  be  broken  wholly  or  in 
part,  and,  if  in  part,  the  breach  may  or  may  not  be  sufficiently 
important  to  operate  as  a  discharge;  or,  if  it  is  of  such  importance, 
the  injured  party  may  choose  not  to  regard  it  as  a  discharge,  pre- 
ferring to  continue  to  carry  out  the  contract,  reserving  to  him- 
self the  right  to  sue  for  such  damages  as  he  may  have  sustained 
by  the  breach.  It  is  often  very  difficult  to  determine  whether 
or  not  a  breach  of  one  of  the  terms  of  a  contract  discharges  the 
party  injured.**  These  questions  will  be  discussed  in  the  following 
pages. 

FORMS  OF  DISCHARGE  BY  BREACH 

242.  A  contract  may  be  broken  in  any  one  of  three  ways : 

(a)  A  party  may  renounce  his  liabilities  under  it. 

(b)  He  may  by  his  own  act  make  it  impossible  for  him  to  ful- 

fill his  liabilities  under  it. 

(c)  He  may  totally  or  partially  fail  to  perform  what  he  has 

promised. 

Of  these  three  forms  of  breach,  the  first  two  may  take  place 
while  the  contract  is  still  wholly  executory ;  that  is,  before  either 
party  is  entitled  to  demand  a  performance  by  the  other  of  his 
promise.  The  last  can  only  take  place  at  or  during  the  time  for 
performance.*' 


SAME— RENUNCIATION  OF  CONTRACT 

243.  Renunciation  of  a  contract  by  one  of  the  parties  before  the 
time  for  performance  discharges  the  other  party  if  he  so 
chooses,  but  not  otherwise,  and  entitles  him  to  sue  at  once 
for  the  breach.*^ 

*«  Anson,  Ckint   (4th  Ed.)  276.  *•  Anson,  Cont    (4th  Ed.)  280. 

*7  Anson,  Cent    (4th  Ed.)   280-283.     And  see  "Repudiation  of  Contracts," 
by  Samuel    WilliBton,  14  Harv.  L«w  Rer.  317,  421. 


558  DISCHARGE    OF    CONTRACT  (Cll.  11 

244.  Renunciation  of  a  contract  by  one  of  the  parties  in  the  course 
of  performance  discharges  the  other  party  from  a  contin- 
ued performance  of  his  promise,  and  entitles  him  to  sue 
at  once  for  the  breach.*' 

Before  Performance  is  Due 

The  parties  to  a  contract  which  is  wholly  executory  have  a  right 
to  something  more  than  a  performance  of  the  contract  when  the 
time  for  performance  arrives.  They  have  a  right  to  the  main- 
tenance of  the  contractual  relation  up  to  that  time,  as  well  as 
to  a  performance  of  the  contract  when  due.  It  is  therefore  set- 
tled, by  the  great  weight  of  authority,  that  the  renunciation  of 
a  contract  by  one  of  the  parties  before  the  time  for  performance 
has  come  does  not  discharge  the  other  unless  the  latter  chooses 
to  regard  it  as  a  discharge.*^  If  he  chooses,  he  may  so  regard 
it,  and  at  once  sue  for  the  breach.^"  The  discharge  is  optional 
with  him.  In  a  leading  case  on  this  point  the  defendant  had  en- 
gaged the  plaintiff  to  enter  into  his  service,  the  employment  to 
commence  at  a  future  day,  but  before  that  time  arrived  he  wrote 
the  plaintiff  that  he  should  not  require  his  services.  The  plaintiff 
at  once  sued  for  the  breach  of  contract,  though  the  time  for  per- 
formance had  not  arrived,  and  the  court  held  that  he  was  entitled 
to  do  so.  It  was  said  by  the  court  that,  "where  there  is  a  con- 
tract to  do  an  act  on  a  future  day,  there  is  a  relation  constituted 

♦  8  Anson,  Cont.   (4th  Ed.)  284,  285. 

48  Frost  V.  Knight,  L.  R.  7  Exch.  Ill;  Avery  v.  Bowden,  5  El.  &  Bl.  714; 
Howard  v.  Daly,  Gl  N.  Y.  362,  19  Am.  Rep.  2S5;  Nilson  v.  Morse,  52  Wis. 
240.  9  N.  W.  1;  Kadish  v.  Young,  108  111.  170,  43  Am.  Rep.  548;  Zuck  v. 
McClure,  98  Pa,  541.  See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  S13;  Cent. 
Dig.  §  1219. 

BoHochster  v.  De  la  Tour,  2  El.  &  Bl.  678;  Frost  v.  Knight,  L.  R.  7 
Exch.  Ill;  Roper  v.  .Johnson.  L,  R.  8  C.  P,  167;  Roehm  v.  Horst,  178  U. 
S.  1,  20  Sup.  Ct.  780.  44  L.  Ed.  953;  Burtis  v.  Thompson,  42  N.  Y,  246,  1 
Am.  Rep.  516;  O'NEILL  v.  SUPREME  COUNCIL  A,  L.  OP  H.,^  tO  N.  J. 
Law,  410,  .'37  Atl.  463,  1  Ann.  Cas.  422,  Throckmorton  Cas.  Contracts,  378; 
Fox  V.  Kitton.  19  111.  519 ;  Crabtree  v.  Messersmith,  19  Iowa,  179 ;  Hosmer 
V.  Wilson,  7  Mich.  294,  74  Am.  Dec.  716;  Chapman  v.  J.  W.  Beltz  &  Sons 
Co.,  48  W.  Va.  1,  35  S.  E.  1013;  Trammell  v.  Vaughan,  158  Mo.  214,  59  S. 
W.  79,  51  L.  R.  A.  854,  81  Am.  St.  Rep.  302;  Mutual  Reserve  Fund  Life 
Ass'n  V.  Taylor,  99  Va.  208,  37  S.  E.  854.  So,  also,  in  executory  contracts 
of  sale,  if,  before  the  time  arrives,  the  purchaser  repudiates  the  contract, 
the  seller  need  not  tender  the  goods,  but  may  sue  at  once  for  the  breach. 
Roper  V.  Johnson,  supra ;  Eckenrode  v.  Chemical  Co.,  55  Md.  51 ;  Wind- 
muller  v.  Pope,  107  N.  Y.  674,  14  N.  E.  436 ;  Bunge  v.  Koop,  48  N.  Y.  225, 
8  Am.  Rep.  546;  James  v.  Adams,  16  W.  Va.  245;  McCormick  v.  Basal 
46  Iowa,  235;  Zuck  v.  McClure,  98  Pa.  541;  Kadish  v.  Young,  108  111.  170. 
43  Am.  Rep.  548;  Piatt  v.  Brand,  26  Mich.  173.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  SIS;    Cent.  Dig.  §  1219. 


§§  243-244)  BY  BREACH  559 

between  the  parties  in  the  meantime  by  the  contract,  and  *  *  * 
they  impHedly  promise  that  in  the  meantime  neither  will  do  any- 
thing to  the  prejudice  of  the  other  inconsistent  with  that  rela- 
tion." "^  And  in  another  case  the  defendant  had  agreed  to  marry 
the  plaintiff  upon  his  father's  death,  but  renounced  the  contract, 
and  tne  plaintiff  was  allowed  to  sue  for  the  breach  during  the 
father's  lifetime.  "The  promisee,"  it  was  said,  "has  an  inchoate 
right  to  the  performance  of  the  bargain,  which  becomes  complete 
when  the  time  for  performance  has  arrived.  In  the  meantime  he 
has  a  right  to  have  the  contract  kept  open  as  a  subsisting  and 
effective  contract.  Its  unimpaired  and  unimpeached  efficacy  may 
be  essential  to  his  interests."  ^^ 

The  case  just  mentioned  is  authority  for  the  statement  that  the 
operation  of  the  rule  is  not  affected  by  the  fact  that  the  perform- 
ance is  contingent,  for  in  this  case  the  father  may  have  outlived 
the  plaintiff  or  the  defendant,  in  which  case  the  time  for  per- 
formance never  could  arise. 

There  must,  however,  be  a  positive  and  unqualified  renuncia- 
tion ;  a  mere  expression  of  intention  not  to  perform  is  insuffi- 
cient.'^* 

The  rule  laid  down  above  is  subject  to  limitations:"* 

(1)  The  renunciation  must  deal  with  so  much  of  the  perform- 
ance to  which  the  contract  binds  the  promisor  that  an  actual  breach 
at  the  time  of  performance  would  operate  as  a  discharge.  This 
point  was  mentioned  in  a  case  in  which  a  tenant  claimed  damages 
of  his  landlord  for  breach  of  contract  by  repudiation  of  a  covenant 
to  rebuild  the  premises  at  a  period  of  the  tenancy  which  had  not 
yet  arrived,     "The  contract,"  it  was  said,  "was  the  whole  lease. 

81  Hochster  v.  De  la  Tour,  2  El.  &  Bl,  678,  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  S13;   Cent.  Dig.  §  1279. 

6  2  Frost  V.  Knight,  L,  R.  7  Exch.  Ill,  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  313;   Cent.  Dig.  §  1279. 

B3Diiigley  v,  Oler,  117  U.  S.  490,  6  Sup.  Ct  850,  29  L.  Ed.  984;  Vittmn 
V.  Estey,  G7  Vt.  158,  31  Atl.  144;  Bannister  v,  Victoria  Coal  &  Coke  Co.,  63 
W.  Va.  502,  Gl  S.  E.  338.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  313;  Cent. 
Dig.  §  1279. 

5*  It  seems  tbat  If  the  obligation  is  merely  to  pay  money,  renunciation  be- 
fore payment  falls  clue  cannot  have  the  effect  of  an  anticipatory  breach. 
See  Burtis  v.  Thompson,  42  N.  Y.  24G,  1  Am.  Rep.  51G;  Nichols  v.  Steel 
Co.,  137  N.  Y,  471,  33  N,  E.  5G1,  5GG;  Flinn  v,  Movvry,  131  Cal.  481,  G3  Pac. 
724,  lOOG;  Benecke  v,  Haebler,  38  App,  Div.  344,  58  N.  Y.  Supp.  IG,  affirmed 
IGG  N.  Y.  031,  GO  N,  E.  1107.  And  it  has  been  held  that  repudiation  by  the 
defendant  after  full  performance  by  the  plaintiff  confers  no  right  of  action 
as  for  an  anticipatory  breach,  on  the  ground  that  the  defendant  might  elect 
to  perform.  I'ittnian  v.  Pittman,  110  Ky.  30G,  Gl  S.  W.  4GL  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  313;    Cent.  Dig.  §  1279. 

/. 


560  DISCHARGE    OF    CONTRACT  (Ch.  11 

The  covenant  in  question  is  a  particular  covenant  in  the  lease 
not  going  to  the  whole  consideration.  If  there  were  an  actual 
breach  of  such  a  covenant  at  the  time  fixed  for  performance,  such 
breach  would  not,  according  to  the  authorities,  entitle  the  tenant 
to  throw  up  his  lease.  That  being  so,  I  do  not  hesitate  to  say — 
though  it  is  not  necessary  in  this  case  to  decide  the  point — that 
an  anticipatory  breach  would  not  entitle  him  to  do  so,  and  that 
it  does  not  appear  to  me  that  he  could  elect  to  rescind  part  of 
the  contract."  " 

(2)  The  promisee  must  treat  the  renunciation  by  the  promisor 
as  a  discharge.  If  he  does  not  so  treat  the  renunciation,  but  con- 
tinues to  insist  on  the  performance  of  the  promise,  the  contract 
remains  in  existence  for  the  benefit,  and  at  the  risk,  of  both  par- 
ties.*' If  anything  occur,  for  instance,  to  discharge  it  from  other 
causes,  the  promisor  may  take  advantage  of  such  discharge.  A 
vessel  owner  agreed  with  a  person,  by  charter  party,  that  his 
ship  should  go  to  Odessa,  and  there  take  on  a  cargo  from  such 
person's  agent.  The  vessel  reached  Odessa,  and  her  master  de- 
manded a  cargo,  but  the  agent  refused  to  supply  one.  The  master, 
instead  of  treating  this  refusal  as  a  breach  of  contract,  and  sailing 
away,  in  which  event  the  vessel  owner  could  have  sued  at  once 
for  breach  of  contract,  continued  to  demand  a  cargo,  and  before 
the  running  days  were  out — before,  therefore,  a  breach  by  non- 
performance had  occurred — a  war  broke  out,  rendering  perform- 
ance of  the  contract  legally  impossible.  Afterwards,  the  owner 
sued  for  breach  of  the  charter  party,  but  it  was  held  that  as  there 

66  Johnstone  v.  Milling,  16  Q.  B.  Div.  4G0.  And  see  Obermyer  v.  Nichols, 
6  Bin.  (Pa.)  159,  6  Am.  Dee.  439.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  § 
SIS;  Cent.  Dig.  §  1279. 

5  6  See  cases  cited  supra,  note  49.  Where  the  other  p<irty  had  not  elected 
to  treat  a  repudiation  as  a  breach,  held  that  he  was  not  excused  for  subse- 
quent nonperformance.  Smith  v.  Banking  Co.,  113  Ga.  975,  39  S.  E.  410. 
Where  one  party  renounces,  the  other  is  not  bound  to  sue  for  a  breach  be- 
fore the  day  fixed  for  performance  arrives,  and  to  have  his  damages  as- 
sessed as  of  the  date  of  the  renunciation.  Kadish  v.  Young,  108  111.  170,  43 
Am.  Rep.  548;  Roebling's  Sons'  Co.  v.  Fence  Co.,  130  111.  660,  22  N.  E. 
518.  Cf.  Davis  v.  Bronson,  2  N.  D.  300,  50  N.  W.  836,  16  L.  R.  A.  655,  33 
Am.  St.  Rep.  783.  But  a  plaintiff  may  not  after  repudiation  by  the  defend- 
ant go  on  with  performance,  and  thereby  increase  his  damages  by  a  useless 
performance.  Clark  v.  Marsiglia,  1  Denio  (N.  Y.)  317,  43  Am.  Dec.  670; 
Lord  V.  Thomas,  64  N.  Y,  107;  Gibbons  v.  Bente,  51  Minn.  499,  53  N.  W. 
756,  22  L.  R.  A.  80;  Collyer  v,  Moulton,  9  R.  I.  90,  98  Am.  Dec.  370;  Heaver 
v.  Lanahan,  74  Md.  493,  22  Atl.  263;  Chicago  Bldg.  &  Mfg.  Co.  v.  Barry 
(Tenn.  Ch.  App.)  52  S.  W.  451 ;  Peck  &  Co.  v.  Corrugating  Co.,  96  Mo.  App. 
212,  70  S.  W.  169;  WTGEXT  v.  MARRS,  130  Mich.  609,  90  N.  W.  423, 
Throckmorton  Cas.  Contracts,  383.  See  "Contracts,^'  Dec.  Dig.  (Key-No.) 
I  313;   Cent.  Dig.  §  1279. 


§§   243-244)  BY   BREACH  561 

had  been  no  actual  failure  of  performance  before  the  war  broke 
out  (for  the  running  days  had  not  then  expired),  and  as  the  re- 
nunciation of  the-  contract  had  not  been  accepted  as  a  breach,  the 
charterer  was  entitled  to  the  discharge  of  the  contract,  which 
took  place  upon  the  declaration  of  war.'^'' 

Though  the  rule  as  stated  above  is  almost  universally  recognized, 
the  Massachusetts  court  has  held  that  a  renunciation  before  the 
time  for  performance  has  arrived  does  not  amount  to  a  breach, 
that,  to  render  a  person  liable  "for  breach  of  an  executory  per- 
sonal contract,  the  other  party  must  show  a  refusal  or  neglect  to 
perform  at  a  time  when,  and  under  conditions  such  that,  he  is  or 
might  be  entitled  to  require  performance."  °' 

In  the  Course  of  Performance 

It  may  also  happen  that,  in  the  course  of  performance  of  a 
contract,  one  of  the  parties  may,  by  word  or  act,  deliberately  and 
avowedly  refuse  performance  on  his  part.  In  such  a  case  the  other 
party  is  exonerated  from  a  continued  performance  of  his  promise, 
and  is  at  once  entitled  to  bring  action."  Illustrations  of  such 
a  discharge  are  furnished  by  those  cases  in  which  a  person  con- 
tracts for  the  manufacture  and  supply  of  goods  to  be  delivered 
in  certain  quantities  at  specified  dates,  and,  after  delivery  of  a 
part,  the  buyer  notifies  the  seller  not  to  deliver  any  more.  In 
such  a  case,  in  an  action  by  the  sellers,  in  which  they  averred 
readiness  and  willingness  to  deliver  the  rest  of  the  goods,  and 
that  they  had  been  prevented  from  doing  so  by  the  buyer,  it  was 
contended  by  the  buyer  that  they  should  show,  not  merely  readi- 

67  Avery  V.  Bowden,  5  EI.  &  Bl.  714.  See  "Contracts,"  Dec.  Dig.  (Key-No  ) 
i  313;    Cent.  Dig.  §  1279. 

■■»  Daniels  v.  Newton,  114  Mass.  530,  19  Am.  Rep.  384.  And  see  Stan 
ford  V.  McGill,  6  N.  D.  530,  72  N.  W.  938,  38  L.  R.  A.  760;  Carstens  v.  Mc- 
Donald, 38  Neb.  858,  57  N.  W.  757.  Cf.  Lewis  v.  Tapman.  90  Md.  294,  45 
Atl.  459,  47  L.  R.  A.  385.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  313;  Cent 
Dig.  §  1279. 

69Cort  V.  Railway  Co.,  17  Q.  B.  127;  Textor  v.  Hutchings.  02  Md.  150; 
Hosmer  v.  Wilson,  7  Mich.  293,  74  Am.  Dee.  710;  Derby  v.  Johnson,  21  Vt. 
17;  James  v.  Adams,  16  W.  Va.  245;  Clement  &  Hawkes  Mfg.  Co.  v. 
Meserole,  107  Mass.  302;  Parker  v.  Russell,  133  Mass.  74;  Haines  v. 
Tucker,  50  N.  H.  311;  McCormick  v.  Basal,  46  Iowa,  235;  Smith  v.  Lewis, 
24  Conn.  024.  03  Am.  Dec.  ISO ;  Amsden  v.  Atwood,  08  Vt.  322,  35  Atl.  311 ; 
North  V.  INIallorj',  94  Md.  305.  51  Atl.  89;  TLmmerman  v.  Stanley,  V2r>  Ga. 
850.  51  S.  E.  700,  1  L.  R.  A.  (N.  S.)  379.  And  see  WIG'ENT  v.  MARRS,  130 
Mich.  009,  90  N.  W.  423,  Throckmorton  Cas.  Contracts,  383.  If  a  renuncia- 
tion is  treated  as  a  discharge,  it  may  not  be  withdrawn,  even  though  the 
time  for  actual  performance  has  not  arrived.  Quarton  v.  American  Law 
Look  Co.,  143  Iowa,  517,  121  N.  W.  1009,  32  L.  R.  A.  (N.  S.)  1.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  313;  Cent.  Dig.  §  1279. 
Clark  Cont.(3d  Ed.)— 36 


562  DISCHARGE    OF    CONTRACT  (Ch.  11 

ness  and  willingness  to  deliver,  but  actual  delivery.  The  court, 
however,  held  the  contrary,  and  stated  the  principle  thus :  "When 
there  is  an  executory  contract  for  the  manufacturing  and  supply 
of  goods  from  time  to  time,  to  be  paid  for  after  delivery,  il 
the  purchaser,  having  accepted  and  paid  for  a  portion  of  the  goods 
contracted  for,  gives  notice  to  the  vendor  not  to  manufacture  any 
more  as  he  has  no  occasion  for  them  and  will  not  accept  or  pay/ 
for  them,  the  vendor  having  been  desirous  and  able  to  complete 
the  contract,  he  may,  without  manufacturing  and  tendering  the 
rest  of  the  goods,  maintain  an  action  against  the  purchaser  for 
breach  of  contract;  and  *  *  *  he  is  entitled  to  a  verdict  on 
pleas  traversing  allegations  that  he  was  ready  and  willing  to  per- 
form the  contract,  that  the  defendant  refused  to  accept  the  resi- 
due of  the  goods,  and  that  he  prevented  and  discharged  the  plain- 
lifif  from  manufacturing  and  delivering  them."  ®° 

In  this  case,  however,  as  in  that  of  a  renunciation  before  per- 
formance due,  the  refusal  of  further  performance  must  be  positive 
and  unequivocal  in  order  to  entitle  the  other  party  to  treat  the 
contract  as  discharged,®^  and  a  declaration  of  intention  to  abandon 
the  contract  at  a  future  time  is  not  sufficient,  where  the  party  is 
at  the  time  engaged  in  performance  of  the  contract.®^ 


SAME— IMPOSSIBILITY  CREATED  BY  PARTY 

245.  If  a  party  to  a  contract,  either  before  the  time  for  performance 
or  in  the  course  of  performance,  makes  performance,  or 
further  performance,  by  him  impossible,  the  other  party 
is  discharged,  and  may  sue  at  once  for  breach  of  contract. 

If  before  the  time  for  performance  has  arrived  one  of  the  parties, 
by  his  own  act,  makes  it  impossible  to  perform,  the  other  is  dis- 
charged, and  may  sue  at  once  for  a  breach,  as  in  case  of  renuncia- 
tion.®^    Where  a  lessee,  for  instance,  had  promised  to  assign  to 

60  Cort  V.  Railway  Co.,  17  Q.  B.  127.  See  "ContracU"  Dec.  Dig.  {Key- 
is^o.)  §  S13;   Cent.  Dig.  §  1219. 

61  Kilgore  v.  Baptist  Educational  Ass'n,  90  Tex.  144,  37  S.  W.  601 ;  Harde- 
man-King Lumber  Co.  v.  Hampton  Bros.  (Tex.  Civ.  App.)  130  S.  W.  647; 
WIGENT  V.  MARKS,  130  Mich.  609,  90  N.  W.  423,  Throckmorton  Cas.  Con- 
tracts, 383.     See  ''Contracts,"  Dec.  Dig.  (Key-No.)  §  313;    Cent.  Dig.  §  1279. 

62  See  cases  cited  supra,  note  61. 

63  Lovelock  V.  Franklyn,  8  Q.  B.  371 ;  Ford  v.  Tiley,  6  Barn.  &  C.  325 ; 
Bowdell  V.  Parsons,  10  East,  359;  Crabtree  v.  Messersmith,  19  Iowa,  179; 
Wolf  V.  Marsh,  54  Cal.  228;  Lovering  v.  Lovering,  13  N.  H.  513;  New- 
comb  V.  Brackett,  16  Mass.  161;    Delamater  v.  Miller,  1  Cow.  (N.  Y.)   75,  13 


§    245)  BY   BREACH  5G3 

another,  at  any  time  within  seven  years  from  the  date  of  the 
promise,  all  his  interest  in  the  lease,  but  before  expiration  of  the 
seven  years  assigned  his  whole  interest  to  another  person,  it  was 
held  that  he  could  be  sued  at  once  for  breach  of  contract.  "The 
plaintiff,"  it  was  said  in  that  case,  "has  a  right  to  say  to  the 
defendant:  'You  have  placed  yourself  in  a  situation  in  which 
you  cannot  perform  what  you  have  promised.  You  promised  to 
be  ready  during  the  period  of  seven  years,  and  during  that  period 
I  may  at  any  time  tender  you  the  money  and  call  for  an  assign- 
ment, and  expect  that  you  should  keep  yourself  ready;  but,  if 
I  now  were  to  tender  you  the  money,  you  would  not  be  ready.' 
That  is  a  breach  of  the  contract."  '*  The  rule  applies  where  a 
person  promises  to  execute  a  lease  for  a  certain  term,  or  a  con- 
veyance, and,  before  the  time  for  executing  arrives,  executes  a 
conveyance,  or  a  lease  covering  that  term,  to  another;  "*  or  where 
a  person  promises  to  sell  specific  goods  on  a  certain  day,  and, 
before  that  day,  sells  them  to  another;  '^  or  where  a  person  prom- 
ises to  marry,  and,  before  the  time  for  performance  arrives,  mar- 
ries another  than  the  promisee,'^ 

The  rule  is  the  same  where  a  party  to  a  contract,  by  his  volun- 
tary act,  in  the  course  of  performance,  makes  performance  by 
him  impossible."     An  illustration  is  afforded  in  a  case  in  which 

Am.  Dec.  512;  BoUes  v.  Sachs,  37  Minn.  315,  33  N.  W.  862;  Cooley  v. 
Moss,  123  Ga.  707,  51  S.  E.  ()2."3;  Hunter  v.  Wenatchee  Land  Co.,  50  Wash. 
438,  97  Paa  494.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  314;  Cent.  Dig.  § 
UJi6. 

6  4  Lovelock  V.  Franklyn.  8  Q.  B.  371.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  SIJ,;    Cent.  Dig.  §  i^^ff. 

6  5  Ford  V.  Tiley,  6  Barn.  &  C.  325;  Synge  v.  Synge  (1894)  1  Q.  B.  46G; 
Newcomb  v.  Brackett,  16  Mass.  161 ;  Bassett  v.  Bassett,  55  Me.  127.  Con- 
tra, Webb  V.  Stephenson,  11  Wash.  342,  39  Pac,  952;  Garberino  v.  Roberts, 
109  Cal.  125,  41  Pac.  857.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  314;  Cent. 
Dig.  §  1J,',6. 

eeBowdell  v.  Parsons,  10  East,  359;  Hawley  v.  Keeler,  53  N.  T.  114; 
Smith  V.  Jordan,  13  Minn.  2G4  (Gil.  246),  97  Am.  Dec.  232;  Crist  v.  Armour, 
34  Barb.  (N.  Y.)  378;  Easton  v.  Jones,  193  Pa.  147,  44  Atl.  264.  See  "Con- 
tracts," Dec.  Dig.   (Key-No.)   §  Sli ;    Cent.  Dig.  §  1U6. 

67  Short  V.  Stone,  8  Q.  B.  358;  King  v.  Kersey,  2  Ind.  402;  Sheahan  v. 
Rany,  27  Mich.  217;  Brown  v.  Odill.  104  Tenn.  250,  56  S.  W.  840,  52  L.  R. 
A.  660,  78  Am.  St.  Rep.  914.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  31.',; 
Cent.  Dig.  §  14J,6. 

68  O'Neill  y.  Armstrong,  [1895]  2  Q.  B.  70;  Woolner  t.  Hill,  93  N.  Y.  576; 
Lovell  V.  Insurance  Co.,  Ill  U.  S.  264,  4  Sup.  Ct.  390,  28  L.  Ed.  423 ;  Chicago 
T.  Tilley,  103  U.  S.  146,  26  L.  Ed.  371;  Hinckley  v.  Steel  Co.,  121  U.  S. 
264,  7  Sup.  Ct  875,  30  L.  Ed.  967 ;  Western  Union  Telegraph  Co.  v.  Semmes, 
73  Md.  9,  20  Atl.  127.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  314;  Cent. 
Dig.  §  1U6. 


5G4  DISCHARGE    OF    CONTRACT  (Ch.  11 

the  plaintiff  had  been  engaged  by  the  defendants,  for  a  certain 
sum,  to  write  a  treatise  for  a  serial  published  by  them.  The  plain- 
tiff incurred  expense  in  preparing  his  work,  and  actually  com- 
pleted a  part  of  it,  but  before  it  was  delivered  to  the  defendants 
they  abandoned  the  publication  of  the  serial.  The  plaintiff  sued 
them  on  the  special  contract,  and  also  on  the  quantum  meruit 
for  the  work  and  labor  expended  by  him  on  the  treatise.  It  was 
argued  that  he  could  not  recover  upon  the  quantum  meruit  be- 
cause, his  part  of  the  original  contract  being  unperformed,  the 
contract  was  not  wholly  at  an  end ;  but  the  court  held  that  the 
abandonment  of  the  publication  put  an  end  to  the  contract,  and 
constitute^!  a  discharge." 


BREACH  BY  FAILURE  OF  PERFORMANCE 

246.  Whether  or  not  failure  of  one  party  to  perform  the  contract 
in  whole  or  in  part  operates  as  a  discharge  of  the  other, 
or  merely  gives  him  a  right  of  action  for  the  breach,  de- 
pends upon  the  nature  of  the  respective  promises,  or,  in 
other  words,  on  the  question  whether  they  are — 

(a)  Independent  of  each  other,  in  which  case,  as  a  rule,  there 

is  no  discharge, 

(b)  Conditional  upon  each  other,  in  which  case,  as  a  rule,  there 

is  a  discharge. 

In  the  cases  of  discharge  by  breach  with  which  we  have  thus 
far  dealt,  the  party  at  fault  so  deals  with  the  contract,  by  word  or 
act,  as  to  intimate  to  the  other  party  that  performance,  or  further 
performance,  as  the  case  may  be,  on  his  part,  is  needless.  In  such 
cases,  as  we  have  seen,  the  courts  hold  that  the  party  not  in  de- 
fault is  not  bound  to  tender  performance,  but  may  consider  the 
contractual  tie  broken,  and  sue  at  once  for  the  other's  breach. 
These  cases  are  very  clear  and  simple;  but  where  the  breach  by 
one  party  does  not  make  the  contract  wholly  incapable  of  per- 
formance,  and   is   not   accompanied   by   any  overt  expression   of 

6»  Planch^  V.  Colbnm,  fi  Bing.  14.  So,  also,  where  a  person  had  been 
employed  by  a  corporation  for  a  number  of  years,  and  the  company  was 
voluntarily  wound  up  before  the  time  bad  expired,  so  tbat  further  perform- 
ance by  it  was  rendered  Impossible,  the  employ^  was  permitted  to  sue  at 
once  for  the  breach  of  contract  Ex  parte  Maclure,  L.  R.  5  Ch.  App.  737. 
And  see  Seipel  v.  Trust  Co.,  84  Pa.  47 ;  UNITED  STATES  v.  BEHAN,  110 
V.  S.  338,  4  Sup.  Ct.  81,  28  L.  Ed.  168,  Throckmorton  Cas.  Contracts,  409; 
Newhall  Engineering  Co.  v.  Daly,  116  Wis.  2.5G,  93  N.  W.  12.  See  "Con- 
tmcts;'  Dec.  Dig.  (Eey-No.)  §  S14;    Cent.  Dig.  §  1U6. 


g§  247-248)  BY  BREACH  5G5 

intention  to  abandon  his  rights,  it  is  not  always  easy  to  determine 
whether  the  other  party  is  thereby  discharged,  or  whether  he 
merely  acquires  a  right  of  action  for  the  breach.  It  is  necessary 
in  these  cases  to  look  to  the  terms  of  the  contract,  and  ascertain 
the  intention  of  the  parties  as  to  the  nature  of  their  respective 
promises.  The  difficulties  resolve  themselves  into  the  question 
whether  the  promises  of  the  parties  are  independent  of,  or  con- 
ditional upon,  one  another.'^"  This  question  must  be  discussed 
at  some  length ;  but  it  may  be  well  to  state  at  the  outset  that. 
as  a  general  rule,  failure  of  a  party  to  perform  his  promise  does 
not  discharge  the  other  from  liability  to  perform  his,  if  the 
promises  are  independent  of  each  other;  but  that  it  is,  as  a  rule, 
otherwise,  if  the  promises  are  conditional  upon  one  another. 


SAME— INDEPENDENT  PROMISES 

247.  Failure  of  one  of  the  parties  to  a  contract  to  perform  an  in- 

dependent promise  does  not  discharge  the  other  party  from 
liability  to  perform,  but  merely  gives  him  a  right  of  action 
for  the  breach. 

248.  A  promise  may  be  independent  in  the  following  ways : 

(a)  It  may  be  absolute — that  is,  wholly  unconditional  upon  per- 

formance by  the  other  party ;  but  promises,  each  of  which 
forms  the  whole  consideration  for  the  other,  will  not  be 
held  independent  of  one  another,  unless  the  intention  of 
the  parties  to  make  them  independent  is  clear. 

(b)  It  may  be  divisible — that  is,  the  promise  may  be  susceptible 

of  more  or  less  complete  performance,  and  the  damage  sus- 
tained by  an  incomplete  performance  or  partial  breach 
may  be  apportioned  according  to  the  extent  of  the  failure. 

(c)  It  may  be  subsidiary — that  is,  the  promise  broken  may  be  a 

term  of  the  contract  which  the  parties  have  not  regarded 
as  vital  to  its  existence. 

Absolute  Promises 

If  a  person  makes  a  promise  to  another  in  consideration  of  a 
promise  by  the  latter  to  him,  and  has  not  in  express  terms,  or  upon 
a  reasonable  construction  of  the  contract,  made  the  performance 
of  his  promise  depend  upon  performance  by  the  other  party,  he  is 
not  discharged  by  the  latter's  breach  of  his  promise.^^    He  has  giv- 

To  Anson,  Cont.    (4th  Ed.)   2S6. 

Ti  Thorpe  v.  Thorpe,  12  Mod.  45.5;  Thomas  v.  Cadwallndcr,  Wlllo."?.  496; 
Ware  v.   Chappell,   .Style,   1S6;    Dey  v.  Dox,   9  Wend.    (N.   Y.)    120,   24    Am. 


566  DISCHARGE    OF    CONTRACT  (Ch.  11 

en  his  promise  in  consideration  of  the  promise  of  the  other  party, 
and  not  in  consideration  of  performance  by  the  latter  of  his  prom- 
ise. In  other  words,  he  has  accepted  the  latter's  liability  in  return 
for  his  own  promise. 

When  it  has  once  been  determined  that  mutual  promises  are 
absolute  and  independent  of  each  other,  there  can  be  little  difficulty 
in  applying  the  law ;  but  it  is  often  very  difficult  to  decide  as  to 
the  character  of  a  promise  in  this  respect,  and  this  difficulty  has  re- 
sulted in  much  conflict  between  the  cases.  The  old  cases  turned 
upon  a  very  technical  construction  of  terms, ^^  but  the  modern  cases 
show  that  the  tendency  of  the  courts  is  not  to  construe  promises 
to  be  absolute  and  independent  of  one  anotlier,  where  they  form 
the  whole  consideration  for  one  another,  unless  there  is  some  very 
definite  expression  of  an  intention  of  the  parties  to  that  effect.''^ 
"Whether  covenants  be  or  be  not  independent  of  each  other  must 
depend  on  the  good  sense  of  the  case,  and  on  the  order  in  which 
the  several  things  are  to  be  done."  ^*  The  order  in  which  the 
things  are  to  be  done  is  a  very  sure  test  for  determining  whether 
promises  are  absolute  or  not.^"*    "When  it  appears  that  one  of  two 

Dec.  137;  Long  v.  Caffrey,  93  Pa.  52G;  Plafd  v.  Seeley,  47  Barb.  (N.  Y.) 
42S;  Barnett  v.  Franklin  College,  10  Ind.  App.  103,  37  N.  E.  427;  Kauffman 
V.  Raeder,  108  Fed.  171,  47  C.  C.  A.  278,  54  L,  R.  A.  247;  and  cases  here- 
after cited.  See  "Contracts,"  Dec.  Dig.  (Key-Xo.)  §  SIS;  Cent.  Dig.  §§  1508- 
1521. 

72  Rolle,  Ahr.  p.  518;  Ware  v.  Chappell,  Style,  186,  and  see  Glazebrook 
V.  Woodrow,  8  Term  R.  3G6.  In  15  Hen.  VII.  p.  10,  pi.  17,  for  instance, 
it  was  held  that  if  A.  covenant  with  B.  to  serve  him  for  a  year,  and  B. 
covenant  with  A.  to  give  him  a  certain  sum  of  money,  and  does  not  say 
"for  the  cause  aforesaid,"  A.  shall  have  an  action  for  the  money,  though  he 
never  serves  B.,  but  that  it  is  otherwise  if  B.  says  that  A.  shall  have  the 
money  "for  the  cause  aforesaid."  See  2  Pars.  Cout.  note  r,  in  which  the 
old  and  modem  cases  are  collected,  and  the  law  reviewed  at  length.  See 
"Contracts,"  Dec.  Dig.  {Key-So.)  §  SIS;    Cent.  Dig.  §§  1513-152S. 

7s  Anson,  Cont.  (4th  Ed.)  289;  MORTON  v.  LAMB,  7  Term  R.  125,  Throck- 
morton Cas.  Contracts,  S96;  Graves  v.  Legg.  9  Exch.  709;  Dakin  v.  Wil- 
liams, 11  Wend.  (N.  Y.)  67;  Dey  v.  Dox,  9  Wend.  (N.  Y-)  129,  24  Am.  Dec. 
137 ;  Bank  v.  Hagner,  1  Pet.  4-55,  7  L.  Ed.  219 ;  Quigley  v.  De  Haas.  82  Pa, 
267;  Lutz  v.  Thompson,  87  N.  C.  334;  Hamilton  v.  Thrall,  7  Neb.  210; 
Davis  V.  Jeffris,  5  S.  D.  352,  58  N.  W.  815;  post,  p.  57s.  See  "Contracts," 
Dec.  Dig.  (Key-Xo.)  §§  278,  SIS;    Cent.  Dig.  §§  1201-1213,  150S-1521. 

T4  MORTON  V.  LAMB,  7  Term  R.  125,  Throckmorton  Cas.  Contracts,  396; 
Stavers  v.  Curling.  3  Bing.  N.  C.  355;  Proprietors  of  Mill-Dam  Foundry  v. 
Hovey,  21  Pick.  (Mass.)  417;  Lowber  v.  Bangs,  2  Wall.  728,  17  L.  Ed.  768; 
Philadelphia,  W.  &  B.  R.  Co.  v.  Howard,  13  How.  307,  14  L.  Ed.  157;  City 
of  New  Orleans  v.  Texas  &  P.  Ry.  Co.,  171  U.  S.  312,  18  Sup.  CL  875,  883. 
43  L.  Ed.  178.  See  "Contracts,"  Dec.  Dig.  (Kcy-Xo.)  §  321;  Cent.  Dig.  §§ 
1508-1527. 

TB  Mattock    V.   Kinglake,    10  Adol.   &   E.   50;     Couch   t.    Ingersoll,   2    Pick. 


§§  247-248)  BY  BREACH  567 

covenants  or  promises  is  to  be  performed  at  an  earlier  date  than 
the  other,  *  *  *  the  rule  is  simple  and  uniform,  namely,  that 
the  covenant  or  promise  that  is  to  be  performed  first  is  independent 
and  absolute,  while  the  one  that  is  to  be  performed  last  is  depend- 
ent,'the  performance  of  the  former  being  a  condition  precedent  to 
the  performance  of  the  latter."  ^°  Where  a  person  makes  a  prom- 
ise to  another  to  convey  land,  for  instance,  the  date  of  performance 
not  being  fixed,  and  the  other  party,  in  consideration  thereof,  prom- 
ises to  pay  a  sum  of  money  at  a  fixed  date,  it  has  been  held  that  the 
payment  is  independent  of  the  promise,  and  that,  "a  time  being 
fixed  for  payment,  and  none  for  doing  that  w^hich  v^as  the  consid- 
eration for  the  payment,  an  action  lies  for  the  purchase  money, 
without  averring  performance  of  the  consideration."  ^^     Where,  on 

(Mass.)  292;  Robson  v.  Bohn,  27  Minn.  333,  7  N.  W.  357;  State  v.  Rail- 
road Co.,  21  Minn.  472;  McCoy's  Adm'rs  v.  Bixbee's  Adm'r,  6  Oliio,  310,  27 
Am.  Dec.  258;  Slater  v.  Emerson,  19  How.  224,  15  L.  Ed.  G26;  Front  St.  M. 
&  O.  R.  Co.  V.  Butler,  50  Cal.  574;  Phillips  &  Colby  Const.  Co.  v.  Seymour, 
91  U.  S.  646,  23  L.  Ed.  341;  American  Emit^rant  Co.  v.  Adams  County,  100 
U.  S.  61,  25  L.  Ed.  563 ;  Standard  Gaslight  Co.  v.  Wood,  61  Fed.  74,  9  C.  C. 
A.  362;  Loud  v.  Water  Co.,  153  U.  S.  564,  14  Sup.  Ct.  928,  38  L.  Ed.  822; 
Reindl  v.  Heath,  115  Wis.  219,  91  N.  W.  734.  "Where  the  act  of  one  party 
must  necessarily  precede  any  act  of  the  other,  as  where  one  stipulates 
to  manufacture  an  article  from  materials  to  be  furnished  by  the  Other,  and 
the  Other  stipulates  to  furnish  the  materials,  the  act  of  furnishing  the 
materials  necessarily  precedes  the  act  of  manufacturing,  and  will  con- 
stitute a  condition  precedent  without  express  words."  Proprietors  of  Mill- 
Dam  Foundry  v.  Hovey,  21  Pick  (Mass.)  417.  See  "Contracts"  Dec.  Dig. 
(Key-No.)  §  321;    Cent.  Dig.  §§  1508-1521. 

76  Langd.  Sum.  Cont  §  122;  Dey  v.  Dox,  9  Wend.  (N.  Y.)  129,  24  Am.  Dec. 
137.  And  see  Kinney  v.  Federal  Laundry  Co.,  75  N.  J.  Law,  497,  68  Atl. 
111.     See  "Contracts,"  Dec.  Dig.   (Key-No.)   §  278;    Cent.   Dig.  §§  1207-1213. 

7  7  Mattock  V.  Kinglake,  10  Adol.  &  E.  50.  And  see  Goldsborough  v.  Orr, 
8  Wheat.  217,  5  L.  Ed.  GOO;  Bean  v.  Atwater,  4  Conn.  3,  10  Am.  Dec.  91; 
Edgar  v.  Boies,  ll  Serg.  &  R.  (Pa.)  445;  Lowry  v.  Mehaffy,  10  Watts 
(Pa.)  387;  Kane  v.  Hood,  13  Pick.  (Mass.)  281;  Headley  v.  Shaw,  39  111. 
354;  Tronson  v.  University,  9  N.  D.  559,  84  N.  W.  474.  "Where  a  contract 
for  the  sale  of  land  provides  for  partial  payments  of  the  purcha.se  money 
prior  to  delivery  of  the  deed,  the  vendor  may  sue  for  such  installments 
when  due  without  tendering  a  conveyance.  Paine  v.  Brown,  37  N.  Y.  228; 
Harrington  v.  Higgins,  17  Wend.  (N.  Y.)  376.  But  when,  after  the  install- 
ments are  all  due,  the  vendor  brings  an  action  for  the  purchase  money,  he 
Is  not  entitled  to  recover  without  proving  an  offer  before  suit  to  convey. 
*  ^*  *  When  the  last  installment  falls  due,  the  payment  of  the  whole  of 
the  unpaid  purchase  money  and  the  conveyance  of  the  land  become  de- 
pendent acts.  Beecher  Y.  Conradt,  13  N.  Y.  108,  64  Am.  Dec.  535.  And  the 
sajne  rule  ajjplies  when  an  action  is  brought  for  any  installment  payable 
at  or  after  the  term  fixed  for  the  delivery  by  the  deed.  Eddy  r.  Davis,  116 
N.  Y.  247,  22  N.  E.  :W2,  363.  See,  also.  Grant  v.  Johnson,  5  N.  Y.  247; 
McCroskey  v.  Ladd,   96  Cal.   455,  31   Pac.   558;     First  Nat.  Bank   v.    Spear, 


568  DISCHARGE    OF    CONTRACT  (Ch.  H 

the  other  hand,  mutual  promises  are  to  be  performed  at  the  same 
time,  as  where  a  person  promises  to  convey  land  or  deliver  goods 
to  another  on  a  certain  day,  and  the  latter,  in  consideration  thereof, 
promises  to  pay  a  sum  of  money  on  that  day,  neither  can  main- 
tain an  action  on  the  other's  promise  without  performing,  or  offer- 
ing to  perform,  his  part;  and  it  makes  no  difiPerence  that  it  does 
not  appear  which  promise  was  to  be  first  performed.''* 

Neither  this  nor  any  other  test,  however,  can  be  relied  upon  in 
all  cases,  for  often  it  does  not  appear  when  or  in  what  order  prom- 
ises are  to  be  performed.  The  question  in  each  case  is  what  intent 
is  disclosed  by  the  language  employed.^* 

Promises  the  Performance  of  Which  is  Divisible 

Contracts  frequently  occur  in  which  the  promise  of  one  or  both 
parties  admits  of  a  more  or  less  complete  performance,  and  the 
damage  sustained  by  an  incomplete  performance  or  partial  breach 
of  which  may  be  apportioned  according  to  the  extent  of  failure. 
The  performance  of  the  promise  in  such  cases  is  said  to  be  divisi- 
ble. The  promise  is  in  fact  regarded  as  a  number  of  promises  ta 
do  a  number  of  similar  acts,  and  a  breach  of  one  or  some  of  them 
does  not  discharge  the  other  party.*"  On  the  other  hand,  the  prom- 
ise may  be  indivisible  or  entire,  and  if  it  so,  and  is  not  independ- 
ent of  the  promise  of  the  other  party  as  heretofore  explained,  its 

12  S.  D.  108,  80  N.  W.  166;  Shelly  v.  INIikkelson,  5  N.  D.  22,  63  N.  W.  210. 
Contra,  Sheeren  v.  Moses,  84  111.  448.  See  Harriman,  Cont.  §§  321,  322. 
See  ''Contracts,"  Dec.  Dig.   (Key-No.)   §  278;    Cent.  Dig.  §§  1207-1213. 

7  8  See  the  cases  above  cited;  Williams  v.  Healey,  3  Denio  (N.  Y.)  363; 
Gazley  v.  Price,  IG  Johns.  (N.  Y.)  267;  post,  p.  575.  See  "Contracts,"  Dec. 
Dig.   (Key-lSfo.)    §  278;    Cent.  Dig.  §§  1201-1218. 

T  8  Loud  V.  Water  Co.,  153  U.  S.  564,  14  Sup.  Ct.  928,  38  L.  Ed.  822;  Phil- 
adelphia, W.  &  B.  R.  Co.  V.  Howard,  13  How.  307,  14  L.  Ed.  157;  Foley  v. 
Dwyer,  122  Mich.  587,  81  N.  W.  569;  Griggs  v.  Moors,  168  Mass.  354,  47  N. 
E.  128;  Quinlan  v.  Green  County,  Ky.,  157  Fed.  33,  84  C.  C.  A.  537,  19  L. 
R.  A.  (N.  S.)  849.  See  "Contracts;'  Dec.  Dig.  (Key-No.)  §§  278,  2S1 ;  Cent. 
Dig.  §§  1207-1213.  12S1-12SS. 

80  Ritchie  V.  Atkinson.  10  East,  295;  Norris  v.  Harris,  15  Cal.  226;  Mc- 
Grath  v.  Cannon,  55  Minn.  457,  57  N.  W.  150;  Potsdaraer  v.  Kruse,  57  Minn. 
193,  58  N.  W.  983;  Fullmer  v.  Poust,  155  Pa.  275,  26  Atl.  543,  35  Am.  St. 
Rep.  881;  Gill  v.  Lumber  Co.,  151  Pa.  534,  25  Atl.  120;  Ming  v.  Corbin,  142 
N.  Y.  334,  37  N.  E.  105.  Even  where  there  is  an  entire  contract  for  the  sale 
of  goods,  although  if  the  seller  delivers  a  quantity  less  than  he  contracted 
to  sell  the  buyer  may  reject  them,  it  is  generally  held  that  if  the  buyer 
accepts  them  he  must  pay  for  them  at  the  contract  price,  although  the 
seller  fails  to  deliver  the  rest  Oxendale  v.  Wetherell,  4  Man.  &  R.  429 ; 
Bowker  v.  Hoyt,  18  Pick.  (Mass.)  555;  Booth  v.  Tyson,  15  Vt.  515;  Clark 
v.  Moore,  3  Mich.  55;  Richards  v.  Shaw,  67  111.  222;  Polhemus  v,  Heiman, 
45  Cal.  573;  McDonough  v.  Marble  Co.,  112  Fed.  634,  50  C.  C.  A.  403. 
Contra,  Champlin  v.  Rowley,   IS  Wend.  (N.  Y.)   187;    Id.,  13  Wend.  (N.  Y.) 


§§  247-248)  BY  BREACH  569 

entire  performance  is,  as  a  rule,  a  condition  concurrent  or  preced- 
ent to  the  liability  of  the  other  party  to  perform.*^ 

The  question  of  divisibility  is  difficult,  and  this  difficulty  has  re- 
sulted in  a  direct  conflict  in  the  decisions.  The  question  is  one  of 
construction.  "The  contract  may  be  entire  or  severable,  according 
to  the  circumstances  of  each  particular  case,"  it  has  been  said  in 
speaking  of  contracts  of  sale,  "and  the  criterion  is  to  be  found  in 
the  question  whether  the  whole  quantity — all  of  the  things  as  a 
whole — is  of  the  essence  of  the  contract.  If  it  appear  that  the  pur- 
pose was  to  take  the  whole  or  none,  then  the  contract  would  be 
entire ;  otherwise,  it  would  be  severable.  *  *  *  'On  the  whole, 
the  weight  of  opinion  and  the  more  reasonable  rule  would  seem  to 
be  that,  where  there  is  a  purchase  of  diliferent  articles,  at  different 
prices,  at  the  same  time,  the  contract  would  be  severable  as  to 
each  article,  unless  the  taking  of  the  whole  was  rendered  essen- 
tial either  by  the  nature  of  the  subject-matter  or  by  the  act  of  the 
parties.'  This  rule  makes  the  interpretation  of  the  contract  depend 
on  the  intention  of  the  parties  as  manifested  by  their  acts,  and  by 
the  circumstances  of  each  particular  case."  ®^  Though  this  was 
said  in  reference  to  contracts  of  sale,  the  reason  applies  to  other 
contracts  as  well.*^ 

In  a  leading  case  the  plaintiff  had  promised  to  take  his  ship  to  a 
port,  and  there  load  a  complete  cargo,  and  to  deliver  the  same  on 
being  paid  freight.  He  came  away  with  an  incomplete  cargo,  and 
the  defendant  refused  to  pay  any  freight  on  the  ground  that  the 
completeness  of  the  cargo  was  a  condition  precedent  to  any  pay- 
ment being  due.     Lord  Ellenborough  said  that  whether  it  was  so 

258;  Catlin  v.  Tobias,  26  N.  Y.  217,  84  Am.  Dec.  183;  Nightingale  v.  Ei.se- 
man,  121  N.  Y.  288,  24  N.  E.  475  ;  Haslack  v.  Mayers,  26  N.  J.  Law,  2S4 : 
Witlierow  v.  Witherow,  16  Ohio,  238.  Even  in  New  Yorlv  the  seller  can 
recover,  if  the  acceptance  of  part  is  made  under  such  circumstances  as  to 
be  a  waiver  of  full  performance,  as  where  he  is  informed  by  the  seller 
that  he  will  not  deliver  the  rest.  Avery  v.  Wilson,  81  N.  Y.  341.  37  Am. 
Rep.  503;  Silberman  v.  Fretz,  16  Misc.  Rep.  449,  38  N.  Y.  Supp.  151.  See 
'•Contracts;'  Dec.  Dig.   (Key-No.)  §  319;    Cent.  Dig.  §§  UflG-lSOl. 

81  Hartupee  v.  Crawford  (C.  C.)  56  Fed.  61;  Widman  v.  Gay,  104  Wis. 
277,  SO  N.  W.  450;  Prautsch  v.  Rasmussen,  133  Wis.  181,  113  N.  W.  416; 
Quarton  v.  American  Law  Book  Co.,  143  Iowa,  517,  121  N.  W.  1009,  32  L. 
R.  A.  (N.  S.)  1  (contract  for  sale  of  set  of  books  and  delivery  by  install- 
ments). See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  257;  Cent.  Dig.  §§  121^ 
IdlS. 

8  2  Wooten  V.  Walters,  110  N.  C.  251,  14  S.  E.  734,  736.  Sec  "Contracts," 
Dec.  Dig.  {Key-No.)  §  111;  Cent.  Dig.  §§  754-757;  "Sales,"  Dec.  Dig.  (Key- 
No.)  §  62;   Cent.  Dig.  §|  171-179. 

*■&  Brouniel'  v.  Rayiior.  68  Md.  47,  11  Atl.  833.  See  "Sales,"  Dec.  Dig. 
(Key-No.)   §  62;    Cent.  Dig.  §§  171-179. 


570  DISCHARGE    OF    CONTRACT  (Ch.  11 

or  not  depended,  "not  on  any  formal  arrangement  of  words,  but  on 
the  reason  and  sense  of  the  thing,  as  it  is  to  be  collected  from  the 
whole  contract;  *  *  *  here  the  delivery  of  the  cargo  is  in  its 
nature  divisible,  and  therefore  I  think  it  is  not  a  condition  preced- 
ent; but  the  plaintiff  is  entitled  to  recover  freight  in  proportion 
to  the  extent  of  such  delivery,  leaving  the  defendant  to  his  rem- 
edy in  damages  for  the  short  delivery."  ®* 

Same — Delivery  by  Installments 

Where  there  is  a  contract  for  the  sale  of  goods  deliverable  in 
installments,  which  are  to  be  paid  for  on  delivery,  and  the  seller 
makes  defective  delivery  in  respect  to  one  installment,  or  the  buyer 
fails  to  take  delivery  or  to  pay  for  an  installment,  the  question 
arises  whether  the  breach  gives  rise  merely  to  a  claim  for  compen- 
sation, or  to  a  right  to  treat  the  whole  contract  as  repudiated.  It  is 
difficult  to  reconcile  the  English  decisions,  some  of  which  have  held 
that  a  refusal  to  deliver  or  accept  a  particular  installment  is  a 
breach  going  to  the  root  of  the  contract,^^  and  others  have  held  the 
contrary.®^  The  leading  case  in  the  affirmative  is  Hoare  v. 
Rennie.^^  In  that  case  the  defendant  agreed  to  buy  from  the 
plaintiff  667  tons  of  iron,  to  be  shipped  from  Sweden  in  about  equal 
portions  in  each  of  the  months  of  June,  July,  August,  and  Septem- 
ber, and  the  plaintiff  shipped  only  20  tons  in  June,  which  the  de- 
fendant refused  to  accept.  It  was,.held_that  delivery-at  the  time 
specified  was  a  condition  precedent,  and  that  the  plaintiff  could  not 
maintain  an  action  against  the  defendant  for  not  accepting.  The 
leading  case  in  the  negative  is  Simpson  v.  Crippih.®*  In  that 
case  the  defendant  had  agreed  to  supply  the  plaintiff  with  6,000  or 
8,000  tons  of  coal,  to  be  delivered  in  the  plaintiff's  wagons  at  the 
defendant's  colliery  in  equal  monthly  quantities  during  the  period 
of  12  months  from  July  1st.  During  July  the  plaintiff  sent  wagons 
for  158  tons  only,  and  on  August  1st  the  defendant  wrote  that  the 
contract  was  canceled  on  account  of  the  plaintiff's  failure  to  send 
for  the  full  monthly  quantity  in  the  preceding  month.  It  was  held, 
in  an  action  on  the  defendant's  refusal  to  go  on  with  the  contract, 

84  Ritchie  V.  Atl^inson,  10  East,  295.  See  "Contracts"  Dec.  Dig.  {Key- 
No.)   §  111;    Cent.  Dig.  §§  75^-757. 

8B  Hoare  v.  Rennie,  5  Hurl.  &  N.  19;  Honck  v.  Miiller.  7  Q.  B.  Div.  92. 
See  '•Sales."  Dec.  Dig.  (Key-No.)  §  163;    Cent.  Dig.  §§  SS6-3S8. 

86  .Jonassohn  v.  Young,  4  Best  &  S.  296;  Simpson  v.  Crippin,  L.  R.  8  Q.  B. 
14;  Freetli  v.  Burr,  L.  R.  9  C.  P.  208.  See  ''Sales,"  Dec.  Dig.  (Key-No.)  § 
163;    Cent.  Dig.  §§  386-388. 

87  5  Hurl.  &  N.  19.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  163;  Cent.  Dig.  §§ 
386-388. 

8  8  L.  R.  8  Q.  B.  14.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  163;  Cent.  Dig. 
§§  386-388. 


§§    247-248)  BY  BREACH  571 

that  the  breach  in  failing  to  send  wagons  in  sufficient  numbers  in 
the  first  month,  though  a  ground  for  compensation,  did  not  justify 
the  defendant  in  rescinding  the  contract.  Finally,  in  Mersey 
Steel  &  Iron  Co.  v.  Naylor,^®  it  was  decided  that  failure 
of  the  buyer  to  pay  for  the  first  installment  upon  delivery,  unless 
the  circumstances  evince  an  intention  on  his  part  to  be  bound  no 
longer  by  the  contract,  does  not  entitle  the  seller  to  rescind.  The 
rule  in  England  appears  to  be  established  by  this  decision  that  it 
is  a  question  depending  on  the  terms  of  the  contract  and  the  cir- 
cumstances in  the  case  whether  the  breach  of  contract' is  a  repudia- 
tion of  the  whole  contract,  giving  a  right  to  put  an  end  to  it,  or 
whether  it  merely  gives  rise  to  a  claim  for  compensation. 

In  this  country  the  same  conflict  has  existed,  some  cases  follow- 
ing Hoare  v.  Rennie  ""  and  some  Simpson  v.  Crippin.^^  In  the 
Supreme  Court  of  the  United  States  in  NORRINGTON  v. 
WRIGHT,®^  the  rule  laid  down  in  the  first  of  these  cases  was  ap- 
proved. In  NORRINGTON  v.  WRIGHT  the  contract  was  for 
the  sale  of  "5,000  tons  of  iron  rails,  for  shipment  from  European 
port  or  ports,  at  the  rate  of  about  1,000  tons  per  month,  beginning 
February,  1880,  but  whole  contract  to  be  shipped  before  August, 
1880,  at  $45  per  ton,  ex  ship  Philadelphia,  settlement  cash  on  pres- 
entation of  bills,"  etc.     It  was  held  that  the  seller  was  bound  to 

89  9  App.  Cas.  434,  affirming  9  Q.  B.  Div.  648.  See  "Sales,"  Dec.  Dig. 
(Key-No.)  §  16S;    Cent.  Dig.  §§  3S6-38S. 

80  NORRINGTON  v.  WRIGHT,  115  U.  S.  188,  6  Sup.  Ct.  12,  29  L.  Ed. 
3G6,  Throckmorton  Cas.  Contracts,  386 ;  Cleveland  Rolling-Mill  Co.  v.  Rhodes, 
121  U.  S.  255,  7  Sup.  Ct.  882,  30  L.  Ed.  920;  Pope  v.  Porter,  102  N.  Y.  3G6, 
7  N.  E.  304 ;  Clark  v.  Steel  Works,  3  C.  C.  A.  600,  53  Fed.  494 ;  Peace  River 
Phosphate  Co.  v.  Grafflin  (0.  C.)  58  Fed.  550;  King  Philip  Mills  v.  Slater, 
12  R.  I.  82,  34  Am.  Rep.  603 ;  Rugg  v.  Moore,  110  Pa.  236,  1  Atl.  320 ;  Rey- 
bold  V.  Voorhees,  30  Pa.  116;  Robson  v.  Bohn,  27  Minn.  333,  7  N.  W.  357; 
Providence  Coal  Co.  v.  Coxe,  19  R.  I.  380,  582,  35  Atl.  210;  Cresswell 
Ranch  &  Cattle  Co.  v.  Martindale,  63  Fed.  84,  11  C.  C.  A.  33.  See,  also, 
Dwinel  v.  Howard,  30  Me.  258;  Walton  v.  Black,  5  Houst.  (Del.)  149;  Brad- 
ley v.  King,  44  111.  339;  Stokes  v.  Baars,  18  Fla.  656;  Higgins  v.  Railroad 
Co.,  60  N.  Y.  553.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §§  62,  163;  Cent.  Dig. 
§§  n  1-179,  SS6-38S. 

81  Bollman  v.  Burt,  61  Md.  415;  Blackburn  v.  Reilly,  47  N.  J.  Law,  290, 
1  Atl.  27,  54  Am.  Rep.  159 ;  Trotter  v.  Heckscher,  40  N.  J,  Eq.  612,  4  Atl.  83 ; 
Myer  v.  Wheeler,  65  Iowa,  390.  21  N.  W.  092 ;  Hansen  v.  Steam  Heating  Co., 
73  Iowa,  77,  34  N.  W.  495;  Gerli  v.  Manufacturing  Co.,  57  N.  J.  Law,  432, 
31  Atl.  401,  30  L.  R  A.  61,  51  Am.  St.  Rep.  611 ;  Mayor  v.  Schaub  Bros., 
96  Md.  534,  54  Atl.  106.  And  see  West  v.  Bechtel,  125  Mich.  144,  84  N.  W. 
69,  51  L.  R,  A.  791.  Sec  "Sales,"  Dec.  Dig.  (Key-No.)  §  163;  Cent.  Dig. 
§§  386-38S. 

82  115  u.  S.  188,  6  Sup.  Ct  12,  29  L.  Ed.  366,  Throckmorton  Cas.  Contracts, 
386.    See  "Sales,"  Doc.  Dig.  (Key-No.)  §  163;   Cent.  Dig.  §§  386-388. 


572  DISCHARGE    OF    CONTRACT  (Ch.  11 

ship  1,000  tons  in  each  month,  and  that  only  400  tons  having  been 
ihipped  in  February,  and  885  tons  in  March,  the  buyer,  although 
he  had  paid  for  the  February  shipment  in  ignorance  of  the  defec- 
tive shipments  in  that  month  and  in  March,  had  the  right  to  re- 
scind the  whole  contract  for  the  defective  deliveries  in  respect  to 
tlieTirst  installment.  The^decision  rests  on  the  ground  that  in  con- 
tracts of  merchants  time  is  of  the  essence,  and  that  the  shipment 
at  the  time  specified  in  the  contract  was  a  condition  precedent,  on 
failure  of  which  the  buyer  might  rescind  the  whole  contract.  It  is 
to  be  noted  that  Gray,  J.,  in  commenting  on  Mersey  Steel  &  Iron 
Co.  v.  Naylor,  distinguishes  that  case,  pointing  out  that  the 
grounds  of  the  decision,  as  stated  by  the  lord  chancellor,  are  appli- 
cable only  to  the  case  of  failure  by  the  buyer  to  pay  for,  and  not 
to  failure  of  the  seller  to  deliver,  the  first  installment;  that  is,  that 
since  delivery  must  precede  payment  no  particular  payment  can 
be  a  condition  precedent  to  the  entire  contract,  and  hence  the  pay- 
ment cannot  be  a  condition  precedent  to  the  subsequent  fulfill- 
ment of  the  unfulfilled  part,  by  delivery  of  subsequent  install- 
ments.®^ 

By  the  Sales  Act  adopted  in  England  in  1903,®*  and  since  by  a 
number  of  states  in  this  country,'*  the  rule  prescribed  as  to  the 
breach  of  a  contract  for  delivery  by  installments  is  that  "it  depends 
in  each  case  upon  the  terms  of  the  contract  and  the  circumstances 
of  the  case  whether  the  breach  of  contract  is  so  material  as  to  jus- 
tify the  injured  party  in  refusing  to  proceed  further  and  suing  for 
damages  for  breach  of  the  entire  contract,  or  whether  the  breach 
is  severable,  giving  rise  to  a  claim  for  compensation,  but  not  to  a 
right  to  treat  the  whole  contract  as  broken." 

Same — Repudiation  of  Contract 

The  courts  are  agreed  that  if  a  default  in  one  item  of  a  contin- 
uous contract  of  this  nature  is  accompanied  with  an  announcement 
of  intention  not  to  perform  the  contract  upon  the  agreed  terms,  the 

»3  Mere  failure  to  pay,  not  evincing  a  purpose  to  renounce,  held  not  to 
justify  the  seller  in  treating  the  contract  as  abandoned.  Monarch  Cj'Cle 
Mfg.  Co.  V.  Wheel  Co.,  105  Fed.  324,  44  C.  C.  A.  523 ;  West  v.  Bechtel,  125 
Mich.  144,  84  N.  W.  69,  51  L.  R.  A.  791.  But  see  Robson  v.  Bohn,  27  Minn. 
333,  7  N.  W.  357;  Rugg  v.  Moore,  110  Pa.  236,  1  Atl.  320;  Hull  Coal  & 
Coke  Co.  V.  Coke  Co.,  51  C.  C.  A.  213,  113  Fed.  256.  Cf.  Beatty  v.  Lumber 
Co.,  77  Minn.  272,  79  N.  W.  1013.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  163; 
Cent.  Dig.  §§  386-388. 

8  4  St.  55  &  57  Vict.  c.  71,  §  31. 

»5  Acts  Mass.  1908,  c.  237,  §  45  (2). 

In  1912,  the  Uniform  Sales  Act  had  been  adopted  In  the  following  states: 
Arizona,  Connecticut,  Maryland,  Massachusetts,  New  Jersey,  New  York,  Ohio, 
Rhode  Island,  and  Wisconsin.     37  Am.  Bar   Ass'n  Rep.  1124  (1912). 


§§  247-248)  BY  BREACH  573 

other  party  may  treat  the  contract  as  being  at  an  end.®'  It  has  been 
held,  for  example,  that  upon  a  contract  for  the  sale  of  implement 
handles  of  different  patterns,  a  rejection  of  one  installment  by  the 
buyer,  accompanied  by  a  refusal  to  accept  any  further  deliveries  of 
handles  of  one  of  the  patterns  included  in  the  contract,  discharges 
the  seller  from  further  deliveries  under  the  contract.*^  And  a  fail- 
ure to  pay  for  one  installment,  accompanied  by  circumstances  in- 
dicating the  intention  of  the  buyer  to  abandon  the  entire  contract, 
entitles  the  seller  to  treat  the  contract  as  discharged.®* 

Same — Express  Provision  for  Discharge 

It  is  always  permissible  for  the  parties  to  agree  that  the  entire 
performance  of  a  consideration,  in  its  nature  divisible,  shall  be  a  con- 
dition precedent  to  the  right  to  a  fulfillment  by  the  other  party  of 
his  promise. ®®  This  point  is  illustrated  by  a  case  in  which  the  mas- 
ter of  a  ship  gave  a  sailor  a  note  promising  to  pay  him  30  guineas, 
which  was  more  than  the  ordinary  wages,  "provided  he  proceeds, 
continues,  and  does  his  duty  as  second  mate  in  the  said  ship  from 
hence  to  the  port  of  Liverpool."  The  sailor  died  after  having  per- 
formed the  agreement  for  about  seven  weeks,  but  about  three  weeks 
before  the  ship  reached  Liverpool.  The  court  held  that  the  sailor's 
representatives  could  not  recover  upon  the  express  contract,  for  its 
terms  were  unfilled  ;  nor  could  they  recover  upon  a  quantum  meruit 
for  such  services  as  he  had  rendered,  because  the  terms  of  the  ex 
press  contract  excluded  the  arising  of  any  such  implied  contract  as 
would  form  the  basis  of  a  claim  upon  a  quantum  meruit.  "It  may 
fairly  be  considered,"  it  was  said,  "that  the  parties  themselves  un- 
derstood that,  if  the  whole  duty  were  performed,  the  mate  was  to 
receive  the  whole  sum,  and  that  he  was  not  to  receive  anything  un- 
less he  did  continue  on  board  during  the  whole  voyage."  ^ 

86  Withers  v.  Reynolds,  2  Bam.  &  Adol.  882 ;  Catli^  v.  Tobias,  26  N.  Y. 
217,  84  Am.  Dee.  183;  Stephenson  v.  Cady,  117  Mass.  6;  ante,  pp.  658,  5U1. 
And  see  Bloomer  v.  Bernstein,  L.  R  9  C.  P.  5SS.  See  ''Sales,"  Dec.  Dig.  (Key- 
No.)  §  163;    Cent.  Dig.  §§  386-S8S. 

»T  Laawell  v.  National  Handle  Co.,  147  Mo.  App.  497,  12G  S.  W.  969.  See 
"Sales,"  Dec.  Dig.  (Key-No.)  §  163;    Cent.  Dig.  §§  SS6-38S. 

8  8  Quarton  v.  American  Law  Book  Co.,  143  Iowa,  517,  121  N.  W.  1009,  32 
L.  R.  A.  (N.  S.)  1.  -See  "Contracts,"  Dec.  Dig.  (Keg-No.)  §  171;  Cent.  Dig. 
§§  75Jf-757;    "Sales,"  Dec.  Dig.    (Keg-No.)   §  99;    Cent.  Dig.  §  264. 

0  9  Cutter  V.  Powell,  6  Term  R.  320;  2  Smith,  Lead.  Cas.  1,  and  notes; 
Leonard  v.  Dyer,  26  Conn.  172.  68  Am.  Dec.  382;  Martin  v.  Shoenberger,  8 
Watts  &  S.  (Pa.)  867;  Hartley  v.  Decker,  89  Pa.  470.  See  "Contracts,"  Deo. 
Dig.  (Keg-No.)  §  171;    Cent.  Dig.  §§  754-757. 

1  Cutter  V.  Powell.  R  Term  R.  31.'0.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
i  111;    Cent.  Dig.  §§  75/,-757. 


574  DISCHARGE    OF    CONTRACT  (Ch.  11 

Subsidiary  Promises 

The  breach  committed  by  one  of  the  parties  may  be  a  breach  of  a 
term  of  the  contract  only,  and  of  a  term  which  the  parties  have  not, 
upon  a  reasonable  construction  of  the  contract,  regarded  as  vital  to 
its  existence.  The  injured  party  is  then  bound  to  continue  his  per- 
formance of  the  contract,  but  may  bring  an  action  to  recover  such 
damages  as  he  has  sustained  by  the  default  of  the  other.^  In  a 
leading  case,  the  plaintiff,  a  professional  singer,  had  entered  into  a 
contract  with  the  defendant,  director  of  an  opera,  for  his  services  as 
a  singer  for  a  considerable  time,  and  upon  a  number  of  terms,  one 
of  which  was  that  the  plaintiff  should  be  in  London  without  fail  at 
least  six  days  before  the  commencement  of  his  engagement,  for  the 
purpose  of  rehearsals.  The  plaintiff  broke  this  term  by  arriving 
only  two  days  before  the  commencement  of  the  engagement,  and  the 
defendant  treated  this  breach  as  a  discharge  of  the  contract.  The 
court  held  that,  in  the  absence  of  any  express  declaration  that  the 
term  was  vital  to  the  contract,  it  must  "look  to  the  whole  contract, 
and  see  whether  the  particular  stipulation  goes  to  the  root  of  the 
matter,  so  that  a  failure  to  perform  it  would  render  the  performance 
of  the  rest  of  the  contract  by  the  plaintiff  a  thing  different,  in  sub-- 
stance,  from  what  the  defendant  has  stipulated  for,  or  whether  it 
merely  partially  affects  it,  and  may  be  compensated  for  in  dam- 
ages ;  "  and  the  court  held  that  the  term  did  not  go  to  the  root  of  the 
matter,  so  as  to  constitute  a  condition  precedent.* 

Where  a  promise  is  to  be  performed  in  the  course  of  the  perform- 
ance of  the  contract,  and  after  some  of  the  consideration,  of  which 
it  forms  a  part,  has  been  given,  it  will  be  regarded  as  subsidiary,  and 
its  breach  will  not  effect  a  discharge  unless  there  be  words  express- 
ing that  it  is  a  condition  precedent,  or  unless  the  performance  of  the 
thing  promised  be  plainly  essential  to  the  contract* 

2  Tarrabochia  v.  Hickie,  1  Hurl.  &  N.  183 ;  Weintz  v.  Hafner,  78  111.  27 ; 
Boone  v.  Eyre,  1  H.  Bl.  273,  note.  It  Is  under  this  principle  that  a  party  is 
not  discharged  by  failure  of  the  other  to  perform  within  the  time  stipulated, 
where  the  time  is  not  of  the  essence.  Ante,  pp.  512,  572.  See  "Contracts," 
Dec.  Dig.   (Key-^o.)  §  291;    Cent.  Dig.  §§  1211,,  1215. 

3  Bettinl  v.  Gye,  1  Q.  B.  Div.  183.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§  221;    Cent.  Dig.  §§  1015-10S2. 

*  Anson,  Cont  (4th  Ed.)  294,  citing  Graves  v.  Lea:?,  9  Exch.  716,  per 
Parke,  B.  See,  also,  Campbell  v.  .Tones,  6  Term  R,  570.  See  "Contracts," 
Dec.  Dig.   (Key-No.)  §  278;   Cent.  Dig.  §§  1201-121S. 


§§  249-253)  ^  y       BY  BREACH  575 


CONDITIONAL  PROMISES 

249.  Where  a  promise  is  subject  to  a  condition,  that  condition  must, 

as  regards  its  relation  to  the  promise  in  time,  be  either — 

(a)  Subsequent, 

(b)  Concurrent,  or 

(c)  Precedent. 

250.  In  the  case  of  a  condition  subsequent,  the  rights  of  the  prom- 

isee are  determinable  upon  a  specified  event.  The  condi- 
tion does  not  affect  their  commencement,  but  its  occurrence 
brings  them  to  a  conclusion. 

251.  In  the  case  of  a  condition  concurrent,  the  promisee's  rights  are 

dependent  upon  his  doing,  or  being  ready  to  do,  something 
simultaneously  with  the  performance  by  the  promisor. 

252.  In  the  case  of  a  condition  precedent,  the  promisee's  rights  do 

not  arise  until  something  has  been  done  or  has  happened, 
or  some  period  of  time  has  elapsed. 

253.  Where  the  promise  in  a  contract  is  conditional,  the  promisor 

may  be  discharged — 

(a)  By  the  promisee's  failure  to  perform  a  concurrent  condition. 

(b)  By  the  fact  that  there  has  been  a  total  or  substantial  failure 

on  the  promisee's  part  to  do  that  which  he  was  bound  to  do 
under  the  contract — a  state  of  things  sometimes  described 
as  virtual  failure  of  consideration. 

(c)  By  the  untruth  of  some  one  statement,  or  the  breach  of  some 

one  term,  which  the  parties  considered  to  be  vital  to  the 
contract. 

Conditions  Subsequent 

We  have  already  dealt  with  conditions  subsequent  in  treating  of 
discharge  of  contract  by  agreement,  and  it  is  unnecessary  to  speak 
further  of  them  here."^ 

Breach  of  Concurrent  Condition 

Concurrent  conditions  seem,  in  point  of  fact,  to  be  conditions  pre- 
cedent, for  the  simultaneous  performance  of  his  promise  by  each 
party  must  needs  be  impossible  except  in  contemplation  of  law. 
What  is  meant  by  the  phrase  is  that  there  must  be  a  concurrent 
readiness  and  willingness  to  perform,  and  that,  if  one  is  not  able  or 
willing  to  do  his  part,  the  other  is  discharged.®     This  form  of  con- 

B  Ante,  p.  526. 

•  Gall  V.  Gall,  127  App.  Dlv.  892,  112  N.  Y.  Supp.  96.  See  "Contracts," 
Dec.  Dig.   (Key-No.)  §§  173,  278;    Cent.  Dig.  {§  762-76 J,,  1207-1215. 


576  DISCHARGE    OF    CONTRACT  (Ch.  11 

dition  IS  more  particularly  applicable  to  contracts  of  sale,  where  pay- 
ment and  delivery  are  assumed,  in  the  absence  of  express  stipula- 
tion, to  be  intended  to  be  contemporaneous.^  Where  goods  are  sold, 
and  nothing  is  said  as  to  the  time  of  the  delivery  or  the  time  of  pa)^- 
ment,  the  seller  cannot  demand  payment  of  the  price  unless  he  is 
ready  at  the  same  time  to  deliver  the  goods,  and  the  buyer  cannot 
demand  possession  of  the  goods  unless  he  is  ready  to  pay  the  price.* 
In  an  action  for  breach  of  a  contract  by  which  the  plaintiff  had 
agreed  to  buy  a  certain  quantity  of  corn  of  the  defendant  at  a  cer- 
tain price,  and  the  defendant  had  promised  to  deliver  the  corn  with- 
in one  month,  the  plaintiff  merely  alleged  that  he  had  always  been 
ready  and  willing  to  receive  the  corn.  The  court  held  that  as  the 
plaintiff  did  not  allege  that  he  had  been  ready  to  pay  the  price,  there 
was  nothing,  as  he  had  shaped  his  case,  to  show  that  he  had  not 
himself  broken  the  contract  and  discharged  the  defendant  by  non- 
readiness  to  pay.* 

Conditions  Precedent — Suspensory  Conditions  *' 

We  are  here  dealing  with  the  subject  of  discharge  of  contract, 
and  are  therefore  concerned  with  those  conditions  precedent  the 
nonfulfillment  of  which  is  a  cause  of  discharge.  To  make  the  sub^ 
ject_clear,  however,  we  must  mention  and  explain~a~cIass"of  condi- 
tions precedent  which  do  not  operate  as  a  discharge,  but  merely 
suspend  the  operation  of  a  promise  until  they  are  fulfilled.  These 
are  called- by  Anson  floating  or  suspensory  conditions.  A  promise, 
for  instance,  may  be  conditional  upon'  the  happening  of  an  uncer- 
tain event,  as  in  the  case  of  a  contract  of  fire  or  marine  insurance, 
where  the  insurer's  liability  on  his  promise  does  not  accrue  until 
the  loss  of  the  property  insured.  The  condition  suspends  the  op- 
eration of  the  promise. 

T  Anson.  Cont  (4th  Ed.)  298. 

8  MORTON  V.  LAMB,  7  Term  R.  125.  Throckmorton  Cag.  Contracts,  396 ; 
Bloxam  v.  Sanders,  4  Barn.  &  C.  941 ;  Stephenson  y.  Cady,  117  Ma.ss.  6 ; 
Hapgood  V.  Shaw,  105  Mass.  276;  Porter  v.  Rose,  12  Johns.  (N.  Y.)  209,  7 
Am.  Dec.  306;  Cook  v.  Ferral's  Adm'rs,  13  Wend.  (N.  Y.)  2S5 ;  Phelps  v. 
Hubbard,  51  Vt  4S9 ;  Houirh  v.  Rawson,  17  111.  588 ;  Posey  v.  Scales,  55  Ind. 
282;  Simmons  v.  Green,  35  Ohio  St.  104;  Campbell  v.  Moran  Bros.  Co.,  97 
Fed.  477,  38  C.  C.  A.  293 ;  Allen  v.  Hartfield,  76  III.  358 ;  Delaware  Trust  Co. 
V,  Calm,  195  N.  Y.  231,  88  N.  E.  53.  So,  also,  In  case  of  a  sale  of  real  es- 
tate. Smith  V.  Lewis,  20  Conn.  110;  Swan  v.  Drury,  22  Pick.  (Mass.)  485; 
Clark  V.  Weiss,  87  111.  438,  29  Am.  Rep.  60;  Gazley  v.  Price,  16  Johns.  (N. 
Y.)  267;  Bank  of  Columbia  v.  Hagner,  1  Pet.  455,  7  L.  Ed.  219;  ante,  p.  568. 
See  "Sales,"  Dec.  Dig.  {Key-No.)  §  82;   Cent.  Dig.  §§  229-233. 

»  MORTON  V.  LAMB,  7  Term  R.  125,  Throckmorton  Cas.  Contracts,  396. 
See  ''Sales,"  Dec.  Dig.   (Key-No.)  §  41I;   Cent.  Dig.  §§  II6I-II64. 

i«  Anson,  Cont  (4th  Ed.)  296,  297. 


§§  249-253)  BY  BREACH  577 

Again,  a  promise  may  depend  upon  the  act  of  one  of  the  parties 
or  of  some  third  person.^ ^  For  instance,  it  may  be  made  a  condi- 
tion precedent  to  one  party's  liability  under  the  contract  that  he 
shall  be  satisfied  with  the  other  party's  performance ;  and  in  such 
a  case,  by  the  weight  of  authority,  he  cannot  be  compelled  to  per- 
form his  part,  unless  he  is  satisfied. ^^  Other  examples  are  in  the 
case  of  promises  to  pay  for  the  construction  of  a  building  or  other 
construction  work,  conditional  upon  the  approval  and  certificate  of 
the  architect  or  other  third  person.  In  such  cases  payment  cannot 
be  enforced  without  such  approval  unless  there  is  fraud,  or  such 
gross  mistake  as  to  necessarily  imply  bad  faith. ^' 

Again,  a  promise  may  be  conditional  in  the  sense  that  its  op- 
eration is  postponed  until  the  lapse  of  a  certain  time,  as  in  case  of 
a  debt  for  which  a  fixed  period  of  credit  is  given,  or  until  the  hap- 
pening of  an  event  that  is  certain  to  happen,  as  in  the  case  of  a 
contract  of  life  insurance. 

Or,  again,  a  promise  may  be  conditional  in  the  sense  that  its  op- 
eration awaits  the  performance  of  some  act  to  be  done  by  the  prom- 
isee. If  no  time  is  specified  in  which  the  act  is  to  be  done,  the  non- 
fulfillment of  the  condition  merely  suspends,  and  does  not  dis- 
charge, the  rights  of  the  promisee.  Illustrations  of  such  conditions 
are  furnished  by  cases  of  promises  conditional  upon  demand  or  no- 

11  Cavanaugh  v.  Iowa  Beer  Co.,  136  Iowa,  236,  113  N.  W.  856.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §§  225,  282;   Cent.  Dig.  §§  1284-1289. 

12  Ante,  p.  541. 

13  Morgan  v.  Birnie,  9  Bing.  672;  Martinsburg  &  P.  R.  Co.  v.  March,  114 
U.  S.  549,  5  Sup.  Ct.  1035,  29  L.  Ed.  255 ;  Kihlberg  v.  United  States,  97  U.  S. 
398.  24  L.  Ed.  1106 ;  Sweeney  v.  United  States,  109  U.  S.  618,  3  Sup.  Ct.  344, 
27  L.  Ed.  1053 ;  Chicago,  S.  F.  &  C.  R.  Co.  v.  Price,  138  U.  S.  185,  11  Sup. 
Ct  290,  34  L.  Ed.  917;  Kennedy  v.  Poor,  151  Pa.  472,  25  Atl.  119;  Lewis 
V.  Railroad  Co.  (C.  C.)  49  Fed.  708;  Bradner  v.  Roffsell,  57  N.  J.  Law,  412, 
81  Atl.  387 ;  Gilmore  v.  Courtney,  158  111.  432,  41  N.  E.  1023 ;  Ashley  v.  Hene- 
han,  56  Ohio  St.  559,  47  N.  E.  573;  King  v.  City  of  Duluth,  78  Minn.  155, 
80  N.  W.  874;  John  Pritzlaff  Hardware  Co.  v.  Berghoefer,  103  Wis.  359,  79 
N.  W.  564.  Where  the  recovery  of  sick  benefits  depended  on  certificate  of  a 
physician,  his  refusal  to  make  it  did  not  excuse  failure  to  produce  it.  Au- 
dette  V.  L'Union  St.  Joseph,  178  Mass.  113,  59  N.  E.  668.  Where  there  is 
fraud  or  bad  faith,  the  action  of  the  third  person  is  not  conclusive.  Balti- 
more &  O.  R.  Co.  V.  Brydon,  65  Md.  198,  611,  3  Atl.  306,  9  Atl.  126,  57  Am. 
Rep.  318 ;  Wholen  v.  Boyd,  114  Pa.  228,  6  Atl.  384 ;  Teal  v.  Bilby,  123  U.  S. 
B72,  8  Sup.  Ct.  239,  31  L.  Ed.  263.  In  New  York  it  is  held  that  failure  to 
obtain  the  certificate  will  not  defeat  a  recovery  if  it  Is  refused  unreasonably. 
Vought  V.  Williams,  120  N.  Y.  253,  24  N.  E.  195,  8  L.  R.  A.  591,  17  Am.  St. 
Rep.  634 ;  MacKnlght  Flintic  Stone  Co.  v.  City  of  New  York,  160  N,  Y.  72, 
64  N.  E.  661.  See,  also,  Bird  v.  St  Johns  Episcopal  Church,  154  Ind.  13S,  56 
N.  E.  129.  Cf.  Audette  V.  L'Union  St  Joseph,  supra.  Bee  "Contracts,"  Deo. 
Dig.   {Eev-No.)  §  28 Jf;    Cent.  Dig.  §§  1292-1542. 

Claek  Cont.(3d  Ed.)— 37 


578  DISCHARGE    OF    CONTRACT  (Ch.  11 

tice.  If  a  person  promises  another  to  do  something  upon  demand, 
he  cannot  be  sued  until  demand  has  been  made ;  ^*  or  if  he  promises 
to  do  something  upon  the  happening  of  an  event,  and  stipulates 
that  notice  shall  be  given  him  of  the  event  having  happened,  he 
cannot  be  sued  until  such  notice  has  been  given.  Even  if  there  is 
no  such  stipulation  for  notice,  yet,  if  the  happening  of  the  event  is 
peculiarly  within  the  knowledge  of  the  promisee,  an  implied  condi- 
tion will  be  imported  into  the  contract  that  notice  must  be  given 
before  a  suit  can  be  maintained.^* 

Same — Vital  Conditions 

In  the  cases  last  considered,  neither  the  nonfulfillment  of  the 
condition  nor  an  action  brought  before  fulfillment  will  discharge 
the  promisor.  The  condition  merely  suspends  the  right  to  perform- 
ance of  the  promise.^* 

The  conditions  with  which  we  are  now  concerned  effect  a  dis- 
charge of  contract  by  their  breach. 

Where  the  promise  of  one  party  is  conditional  upon  the  promise 
of  the  other,  the  performance  of  the  latter  promise  is  either  a  con- 
dition precedent  or  a  condition  concurrent,  as  the  case  may  be,  and 
in  either  case  the  nonperformance  of  the  condition  not  only  gives 
ground  for  an  action  for  breach  of  the  contract,  but  discharges  the 
contract.  Where  the  promise  of  each  party  is  the  whole  considera- 
tion for  the  promise  of  the_  other,  and  there  is  nothing;^ Jo  indicate 
that  either  was  to  perform  first,  or  that  the  promises  are  independ- 
ent, the  case  is  one  of  concurrent  conditions.^'' 

It  may  appear,  however,  either  expressly,  or  impliedly  from  the 
nature  of  the  contract,  that  one  promise  is  to  be  performed  before 
the  other.  In  such  a  case,  as  we  have  seen,  the  promise  which  is  to 
be  first  performed  is  independent,  and  the  promisee  may  enforce  it, 
or  sue  for  its  breach,  without  having  performed,  or  oflfered  to  per- 
form, on  his  part.    The  promise  of  the  latter,  on  the  other  hand,  is 

14  Allen  V.  Allen,  116  Iowa,  697,  SS  N.  W.  1091.  See  "Contracts,"  Dec.  Dig. 
{Key-No.)   §  277;    Cent.  Dig.  §§  1211-12S2. 

15  Makin  v.  Watkinson,  L.  R.  6  Exch.  25,  See  "Contracts,"  Dec.  Dig.  {Key- 
No.)  §  277;    Cent.  Dig.  §§  1211-1232. 

16  I'almer  v.  Temple,  9  Adol.  &  E.  508.  See  "Contracts,"  Dec.  Dig.  {Key- 
No.)  §§  225,  278;   Cent.  Dig.  §§  1201-1213. 

IT  MORTON  V,  LAMB,  7  Term  R.  125,  Throckmorton  Cas.  Contracts,  396 
Graves  v.  Legg,  9  Exch.  709;  Dakin  v.  Williams,  11  Wend.  (N.  Y.)  67;  Dey 
V.  Dox,  9.  Wend.  (N.  Y.)  129,  24  Am.  Dec.  137;  People  v.  Glann,  70  111.  232 
Bank  of  Columbia  v.  Hagner,  1  Pet.  455,  7  L.  Ed.  219 ;  Quigley  v.  De  Haas 
82  Pa.  267;  Lutz  v.  Thompson,  87  N.  C.  334;  Clark  v.  Collier,  100  Cal.  256, 
34  Pac.  677 ;  Leslie  v.  Casey,  59  N.  J.  Law,  6,  35  Atl.  6 ;  Gray  v.  Smith  (C 
C.)  76  Fed.  525;  ante,  p.  575.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §§  225 
278;   Cent.  Dig.  §§  1207-1213. 


§§  249-253)  BY  BREACH  579 

conditional;  that  is,  performance  by  the  other  is  a  condition  prece- 
dent to  any  liability  to  perform  it.^*  If  a  person  promises  to  work 
for  another,  or  to  build  or  repair  a  house  for  him,  and  the  latter 
agrees  to  pay  him  certain  compensation  therefor,  the  promise  to 
work  or  to  build  the  house  is  impliedly,  from  the  nature  of  the  con- 
tract, tojje  first  performed,  and  is  independent.  The  promise  to 
pay,  on  the  other  hand,  is  conditional.  The  servant  ^'  or  con- 
tractor ^'^  cannot  recover  unless  he  shows  a  performance  on  his 
part,  or  unless  he  was  prevented  from  fully  performing-  by  the  other 
party,  or  by  such  an  impossibility  as  excuses  him.  If  a  time  is  fixed 
for  his  performance,  and  it  is  of  the  essence  of  the  contract,  a  fail- 
ure to  perform  within  that  time  will  discharge  the  other  party, *^ 

18  Gail  V.  Gail,  127  App.  Dlv.  892,  112  N.  Y.  Snpp.  96.  And  see  ante,  p. 
568.     See  ''Contracts,"  Deo.  Dig.  (Key-No.)  §  278;  Cent.  Dig.  §§  1201-1213. 

18  If  the  servant  without  legal  excuse  abandons  the  employment  before  full 
performance,  he  can  recover  nothing  for  his  services,  neither  upon  the  con- 
tract, because  under  an  entire  contract  full  performance  is  a  condition  pre- 
cedent to  the  right  of  recovery  thereon,  nor  upon  an  implied  contract,  because 
the  special  contract  controls  the  rights  of  the  parties  in  respect  to  what  has 
been  done  under  it,  and  excludes  any  implied  contract  Stark  v.  Parker,  2 
Pick.  (Mass.)  267,  13  Am.  Dec.  425;  Olmstead  v.  Beale,  19  Pick.  (Mass.) 
528;  Miller  v.  Goddard,  34  Me.  104,  56  Am.  Dec.  638;  Lawrence  v.  Miller, 
88  N.  Y.  131;  Goldstein  v.  White  (Com.  PI.)  16  N.  Y.  Supp.  860;  Hansell 
V.  Erickson,  28  111.  257;  Thrift  v.  Payne,  71  111.  408;  Peterson  v.  Mayer, 
46  Minn.  468,  49  N.  W.  245,  13  L.  R.  A.  72 ;  Diefenback  v.  Stark,  56  Wis.  462, 
14  N.  W.  621,  43  Am.  Rep.  719.  But  see  Hilderbrand  v.  American  Fine  Arts 
Co.,  109  Wis.  171,  85  N.  W.  268,  53  L.  R.  A.  826,  holding  that  a  servant  dis- 
charged for  cause  may  recover  for  services  rendered  subject  to  the  employer's 
right  to  recoup  damages  by  reason  of  facts  justifying  discharge.  In  some 
states,  however,  a  recovery  upon  a  quantum  meruit,  to  the  extent  of  benefits 
received,  is  permitted,  the  recovery,  if  any,  being  estimated  at  the  contract 
price,  with  deduction  for  what  it  would  cost  to  procure  a  completion  and  of 
any  damages  sustained  by  reason  of  the  breach.  Britton  v.  Turner,  6  N.  H. 
481,  26  Am.  Dec.  713 ;  McClay  v.  Hedge,  IS  Iowa,  66 ;  Duncan  v.  Baker,  21 
Kan.  99;  Parcell  v.  McComber,  11  Neb.  209,  11  N.  W.  529,  38  Am.  Rep.  366; 
West  V.  Van  Pelt,  34  Neb.  63,  51  N.  W.  313.  See  "Master  and  Servant,"  Dec. 
Dig.  (Key-No.)  §§  52-58;    Cent.  Dig.  §§  66-69. 

2  0  Homer  v.  Shaw,  177  Mass.  1,  58  N.  E.  160.  As  to  substantial  perform- 
ance, ante  p.  539.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  278;  Cent.  Dig  §§ 
1207-1213. 

21  Carter  v.  Phillips,  144  Mass.  100,  10  N.  E.  500;  Goldsmith  v.  Guild,  10 
Allen  (Mass.)  239;  Taylor  v.  Longworth,  14  Pet.  172,  10  L.  Ed.  405;  Hicks  v. 
Aylsworth,  13  R.  I.  562 ;  Wilson  v.  Roots,  119  111.  379,  10  N.  E.  204 ;  Chris- 
man  V.  Miller,  21  111.  227;  Wynkoop  v.  Cowing,  21  111.  570;  Grigg  v.  Landis, 
21  N.  J.  Eq.  494;  Adams  v.  Guyandotte  Valley  Ry.  Co.,  04  W.  Va.  181,  61 
S.  E.  341.  In  the  case  of  a  contract  for  sale  of  goods,  failure  to  deliver  at 
the  time  specified  discharges  the  buyer,  and  he  is  not  bound  to  accept  a  sub- 
sequent tender.  Welsh  v.  Gossler,  89  N.  Y.  540;  Jones  v.  U.  S.,  96  U.  S.  24, 
24  L.  Ed.  644;  ante,  p.  512.  See  "Contra-cts,"  Dec.  Dig.  (Key-No.)  {  299'; 
Cent.  Dig.  SS  1S72-13S1. 


580  DISCHARGE    OF    CONTRACT  (Ch.  11 

Same — Executory  Contract  of  Sale 

In  every  executory  contract  of  sale,  where  the  goods  are  sold  by 
description,  there  is  an  implied  condition,  often  miscalled  an  im- 
plied ^warranty/''  that  the  goods  shall  conform  to  the  description. 
In  such  cases  the  tender  of  goods  answering  the  description  is  a 
condition  precedent  to  the  buyer's  liability,  and  if  the  condition  is 
not  performed  he  is  entitled  to  reject  the  goods.'^'  Moreover,  in  a 
sale  of  goods  by  description,  where  the  buyer  has  not  an  opportu- 
nity to  examine  the  goods,  there  is  also  an  implied  condition  that 
the  goods  shall  be  salable  or  merchantable,'*  and  under  some  cir- 
cumstances a  condition  that  goods  ordered  for  a  particular  purpose 
are  reasonably  fit  for  that  purpose  is  implied.^'  These  implied  con- 
ditions are  frequently  spoken  of  as  warranties,  but  inasmuch  as  they 
go  to  the  essence  of  the  contract  the  latter  term  is  misleading.  The 
courts  in  different  jurisdictions  differ  as  to  whether  such  a  condi- 
tion survives  acceptance.^'  But  all  cases  agree  that  where  the 
property  has  not  passed,  the  buyer  is  discharged  by  a  failure  of 
such  an  implied  condition;  and  that  he  may  reject  the  goods,  and 
may  also  bring  an  action  for  such  damages  as  he  has  sustained. ^^ 

22  "Two  tMngs  are  often  confounded.  *  •  •  If  a  man  offers  to  buy  peas 
of  another,  and  he  sends  him  beans,  he  does  not  perform  his  contract  But 
that  is  not  a  warranty."  Per  Lord  Abinger  in  Chanter  v.  Hopkins,  4  Mees. 
&  W.  899.  See,  also,  Bowes  v.  Shand,  2  App.  Cas.  455,  480;  POPE  v.  ALLIS, 
115  U.  S.  371,  6  Sup.  Ct.  69,  29  L.  Ed.  393,  Throelimorton  Cas.  Contracts,  S9& 
See  "Sales,"  Dec.  Dig.  (Key-No.)  S  166;    Cent.  Dig.  §§  391-402. 

2  3  Josling  V.  Kingsford,  32  L.  J.  C.  P.  904;  Allan  v.  Lake,  18  Q.  B.  560; 
POPE  V.  ALLIS,  115  U.  S.  363,  371,  6  Sup.  Ct.  69,  29  L.  Ed.  393,  Throckmor- 
ton Cas.  Contracts,  398;  Bagley  v.  Rolling-Mill  Co.  (C.  C.)  21  Fed.  159,  162. 
See,  also,  NORRINGTON  v.  WRIGHT,  115  U.  S.  188,  203,  6  Sup.  Ct.  12,  29 
L.  Ed.  366,  Throckmorton  Cas.  Contracts,  386,  per  Gray,  J.;  Filley  v.  Pope, 
115  U.  S.  213,  6  Sup.  Ct.  19,  29  L.  Ed.  372 ;  Jones  v.  George,  61  Tex.  345,  349, 
48  Am.  Rep.  280 ;  Avery  v.  Miller,  118  Mass.  500 ;  Haase  v.  Nonnemacher,  21 
Minn.  486.  490 ;  Dailey  v.  Green,  15  Pa.  118 ;  Woodle  v.  Whitney,  23  Wis.  55, 
99  Am.  Dec.  102;  Wolcott  y.  Mount,  36  N.  J.  Law,  262,  13  Am.  Rep.  438; 
.Morse  V.  Moore,  83  Me.  473,  479,  22  Atl.  362,  13  L.  R.  A.  224,  23  Am.  St.  Rep. 
783.  Although  the  sale  is  by  sample,  it  is  not  enough  that  the  bulk  corre- 
sponds with  the  sample  if  it  does  not  correspond  with  the  description.  Michals 
V.  Godts,  10  Exch.  19L  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  166;  Cent.  Dig.  §§ 
391-402. 

2*  Jones  V.  Just,  L.  R.  3  Q.  B.  197 ;  Murchie  v.  Cornell,  155  Mass.  60,  29 
X.  E.  207.  14  L.  R.  A.  492,  31  Am.  St.  Rep.  526 ;  English  v.  Commission  Co., 
57  Fed.  451,  6  C.  C.  A.  416.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  166;  Cent. 
Dig.  §§  391-402. 

20  Jones  V.  Just,  L.  R.  3  Q.  B.  197;  Kellogg  Bridge  Co.  v.  Hamilton,  110 
U.  S.  108,  3  Sup.  Ct.  537,  28  L.  Ed.  86 ;  Hoe  v.  Sanborn,  21  N.  Y.  552,  78  Am. 
Dec.  163.     See  "Sales,"  Dec.  Dig.   (Key-No.)  §  166;    Cent.  Dig.  §§  391-402. 

28  Post,  p.  584. 

2  7  POPE  V.  ALLIS,  115  U.  S.  363,  371,  6  Sup.  Ct  69,  29  L.  Ed.  393,  Throck- 


§§   249-253)  BY  BREACH  581 

For  the  same  reason,  the  buyer  may  reject  the  goods  if  they  fail 
to  conform  to  the  quality  which  the  seller  warranted  they  should 
possess;^*  for  an  undertaking  that  goods  shall  possess  a  certain 
quality,  whether  in  the  form  of  a  description  or  a  warranty,  is  "a 
condition,  the  performance  of  which  is  precedent  to  any  obligation 
upon  the  vendee  under  the  contract,  because  the  existence  of  these 
qualities,  being  part  of  the  description  of  the  thing  sold,  becomes 
essential  to  its  identity,  and  the  vendee  cannot  be  obliged  to  receive 
and  pay  for  a  thing  different  from  that  for  which  he  contracted."  ^^ 
Same — Executed  Contract  of  Sale 

Where  the  buyer  has  accepted  the  goods,  it  is  held  in  England 
and  in  many  jurisdictions  in  this  country  that  he  cannot  afterwards 
reject  them.'"  By^ccepting  he  waives  his  right  to  reject  them, 
and  must  seek  his  remedy  by  action  on  the  warranty  or  by  setting 
up  the  breach  in  diminution  of  the  price.  And  this  applies  whether 
the  sale  is  of  specific  goods  unconditionally — that  is,  goods  ascer- 
tained and  agreed  upon  at  the  time  of  the  contract — or  whether 
the  sale  is  of  unascertained  goods,  which  are  subsequently  ac- 
cepted. In  some  states,  however,  where  there  is  an  express  war- 
ranty, it  is  held  that  the  buyer  may  rescind  the  contract  for  breach 
of  the  warranty,  notwithstanding  acceptance,  and  may  return  the 
goods, '^ 

morton  Caa  Contracts,  398;  Anson,  Cont  (8th  Ed.)  302.  See  "Sales,"  Dec. 
Dig.   {Key-2ifo.)  §  166;    Cent.  Dig.  §§  391-J,02. 

28  Street  v.  Blay,  2  Barn.  &  Adol.  456 ;  Syers  v.  Jonas,  2  Exch.  Ill,  117 ; 
Heilbutt  y.  Hickson,  L.  R.  7  C.  P.  438,  451;  Dailey  v.  Green,  15  Pa.  126; 
Doane  v.  Dunham,  65  111.  512 ;  Id.,  79  111.  131 ;  Cox  v.  Long,  69  N.  C.  7,  9 ; 
Lewis  V.  Rountree,  78  N,  C.  323 ;  Byers  v.  Chapin,  28  Ohio  St.  300 ;  Bigger  v. 
Bovard,  20  Kan.  204;  Polhemus  v.  Heiman,  45  Cal.  573.  See  "Sales,"  Dec. 
Dig.   (Key-No.)  i  166;    Cent.  Dig.  §§  S91-J,02. 

29  2  Smith,  Lead.  Cas.  (8th  Am.  Ed.)  31;  POPE  v.  ALLIS,  115  U.  S.  363, 
6  Sup.  Ct.  69,  29  L.  Ed.  393,  Throckmorton  Cas.  Contracts,  308;  Benj.  Sales. 
§  895;  El  Paso  &  S.  W.  R  Co.  v.  Eichel  &  Weikel  (Tex.  Civ.  App.)  130  S.  W. 
922  (delivery  of  machine  of  less  capacity  than  that  contracted  for).  See 
"Sales."  Dec.  Dig.  {Key-No.)  §  166;    Cent.  Dig.  §§  S91-J,02. 

3  0  Street  v.  Blay,  2  Barn.  &  Adol.  456;  Gompertz  v.  Denton,  1  Cromp.  & 
M.  207;  Poulton  v.  Lattimore,  9  Bam.  &  C.  259;  Thornton  v.  Wynn,  12 
Wheat  183,  6  L.  Ed.  595 ;  Matteson  v.  Holt,  45  Vt.  336 ;  Freyman  v.  Knecht, 
78  Pa.  141 ;  Muller  v,  Eno,  14  N.  Y.  597 ;  Fairbank  Canning  Co.  v.  Metzger, 
118  N.  T.  260,  269,  23  N.  E.  372,  16  Am.  St.  Rep.  753;  Hoover  v.  Sidener,^98 
Ind.  290;  Merrick  v.  Wiltse,  37  Minn.  41,  33  N.  W.  3 ;  Wright  v.  Davenpo'rt, 
44  Tex.  164 ;  ISAACS  v.  WANAMAKER,  71  Misc.  Rep.  55,  127  N.  Y.  Supp. 
846,  Throckmorton  Cas.  Contracts,  402.  See  "Sales,"  Dec.  Dig.  (Key-No.)  § 
179;    Cent.  Dig.  {§  Jf 56-^68. 

81  BRYANT  V.  ISBURGH,  13  Gray  (Mass.)  607,  74  Am.  Dec.  655,  Throck- 
morton Cas.  Contracts.  401 ;  Smith  v.  Hale,  158  Mass.  178.  33  N.  E.  493,  35 
Am    St.  Rep.  485;    Marshall  v.  Perry,  67  Me.  78;    Franklin  v.  Long.  7  Gill 


582  '    DISCHARGE    OF    CONTRACT  (Ch.  11 

Same — Conditions  Precedent  in  Narrower  Sense 

In  the  cases  with  which  we  have  just  been  dealing,  one  of  the  par- 
ties to  a  contract  has  been  excused  from  performance  of  his  prom- 
ise by  reason  of  the  entire  failure  of  the  other  party  to  perform  his 
promise.  We  now  come  to  what  Sir  William  Anson  calls  condi- 
tions precedent  in  the  narrower  and  more  frequent  use  of  the  term 
as  meaning  a  single  term  in  the  contract,  but  a  term  possessing  a 
particular  character.  In  this  sense  a  condition  precedent  is  a  state- 
ment or  promise,  the  untruth  or  nonperformance  of  which  discharg- 
es the  contract.'^ 

The  chief  difficulty  with  regard  to  conditions  precedent  consists 
in  determining  whether  or  not  the  parties  to  a  contract  regarded  a 
particular  term  as  essential.  If  they^  did;_the  term  is  a  condition, 
and  its  failure  discharges  the  contract ;  ^^  if  they  did  not,  the  term 
is  a' warranty,  and  its  failure  can -only-giy-e.dse_  to  an  action  for 
such  damages  as  have  been  sustained  by  the  failure  of  that  par- 
ticular term.^*  Conditions  are  to  be  distinguished  from  warran- 
ties, although  both  terms  are  often  loosely,  and  even  interchange- 

&  J.  (Md.)  407;  Sparling  v.  Marks,  86  111.  125;  Branson  v.  Turner,  77  Mo. 
4S9 ;  Upton  Mfg.  Co.  v.  Huiske,  69  Iowa,  557,  29  N.  W.  621 ;  Bootbby  v. 
Scales,  27  Wis.  626.  This  rule  has  been  embodied  in  the  Uniform  Sales  Act 
(Acts  Mass.  1908,  c.  237)  §  69,  (1),  (d).  And  see  ante,  p.  574.  See  "Sales," 
Dec.  Dig.  {Key-No.)  §  2SS;    Cent.  Dig.  §§  811-823. 

32  Anson,  Cont  (4th  Ed.)  803.  See  Behn  v.  Burness,  3  Best  &  S.  751; 
Glanholm  v.  Hays,  2  Man.  &  G.  257 ;  Bowes  v.  Shand,  2  App.  Cas.  455 ;  Low- 
ber  V.  Bangs,  2  Wall.  728,  17  L.  Ed.  76S ;  Cleveland  Eolling-Mill  v.  Rhodes, 
121  U.  S.  255,  7  Sup.  Ct.  SS2,  30  L.  Ed.  920 ;  Filley  v.  Pope,  115  U.  S.  213,  6 
Sup.  Ct.  19,  29  L.  Ed.  372 ;  Davison  v.  Von  Lingen,  113  U.  S.  40,  5  Sup.  Ct. 
346,  28  L.  Ed.  885;  People  v.  Glann,  70  111.  232;  Tobias  v.  Lissberger,  105 
N.  Y.  404,  12  N.  E.  13,  59  Am.  Rep.  509;  Newhall  v.  Clark,  3  Cush.  (Mass.) 
376,  50  Am.  Dec.  741 ;  Husted  v.  Craig,  36  N.  Y.  221 ;  Ogden  v.  Kirby,  79 
111.  555;  Harder  v.  Commissioners,  97  Ind.  455;  Bell  v.  Hoffman,  92  N.  C. 
273 ;  Salmon  v.  Boykin,  66  Md.  541,  7  Atl.  701.  "A  statement  descriptive  of 
the  subject-matter  or  of  some  material  incident,  such  as  the  time  or  place  of 
shipment,  is  ordinarily  to  be  regarded  as  a  warranty,  in  the  sense  in  which 
the  term  is  used  in  insurance  and  maritime  law ;  that  is  to  say,  a  condition 
precedent  upon  the  failure  or  nonperformance  of  which  the  party  aggrieved 
may  repudiate  the  whole  contract."  NORRINGTON  v.  WRIGHT,  115  U.  S. 
188,  203,  6  Sup.  Ct.  12,  29  L.  Ed.  366,  Throckmorton  Cas.  Contracts,  386.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  %%  221,  218;  Cent.  Dig.  §§  1015-1032,  1201- 
1213. 

33  Daly  V.  City  of  Carthage,  143  Mo.  App.  564,  128  S.  W.  265,  in  which  it  is 
said,  per  Cox,  J.:  "If  a  breach  cannot  be  compensated  for  in  damages,  then 
the  covenants  are  dependent,  and  must  of  necessity  be  so,  else  there  could  be 
no  remedy  at  all."  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  221;  Cent.  Dig. 
§§  1015-1032. 

34Cavanagh  v.  Iowa  Beer  Co.,  136  Iowa.  236,  113  N.  W.  856.  See  "Con- 
tracts," Deo.  Dig.  {Key-No.)  §  221;   Cent.  Dig.  §§  1015-1032. 


§§  249-253)  BY  BREACH  583 

ably,  used.  In  its  proper  sense,  a  warranty  is  *'a.n  express  or  im- 
plied statement  of  something  which  the  party  undertakes  shall  be 
a'part  of  a  contract^;  and  though  part  of  the  contract,  yet  collateral 
to  the  express  object  of  it."  *"  If  the  statement  of  a  party  in  a  con- 
tract that  a  certain  thing  is  true  is  a  condition,  the  other  party  is 
discharged  if  it  is  false ;  but  if  the  statement  is  a  warranty,  only, 
the  other  party  is  not  discharged,  but  merely  has  a  right  of  action 
for  breach  of  the  warranty.  A  warranty  is  a  mere  promise  to  in- 
demnify.^® 

The  question  whether  a  particular  term  in  a  contract  is  a  condi- 
tion precedent  or  a  warranty  depends  upon  the  construction  of  each 
particular  contract.  The  question  is  to  be  determined  by  the  in- 
tention of  the  parties,  and  by  the  application  of  common  sense  to 
each  particular  case ;  and,  when  the  intention  is  once  discovered,  it 
will  control  technical  forms  of  expression."  As  said  in  a  leading 
case :  "Parties  may  think  some  matter,  apparently  of  very  little 
importance,  essential,  and,  if  they  sufficiently  express  an  intention 
to  make  the  literal  fulfillment  of  such  a  thing  a  condition  prece- 
dent, it  will  be  one;  or  they  may  think  that  the  performance  of 
some  matter,  apparently  of  essential  importance  and  prima  facie 
a  condition  precedent,  is  not  really  vital,  and  may  be  compensated 
for  in  damages,  and,  if  they  sufficiently  express  such  an  intention, 
it  will  not  be  a  condition  precedent."  '*  In  other  words,  the  ques- 
tion in  each  case,  where  it  is  to  be  determined  whether  a  breach  of 
a  particular  term  operates  as  a  discharge,  is  whether  or  not  the 
breach  goes  to  the  essence  of  the  contract.^® 

8R  Chanter  v.  Hopkins,  4  Mees.  &  W.  399,  1  H.  &  H.  377,  8  U  J.  (N.  S.)  Ex. 
14,  3  Jur.  58,  51  Rev.  Rep.  650,  per  Lord  Abinger,  C.  B.  See,  also,  Dorr  v. 
Fisher,  1  Cush.  (Mass.)  271.  See  ''Contracts"  Dec.  Dig.  {Key-No.)  §  221; 
Cent.  Dig.  §§  1015-1032. 

3  8  Ante,  p.  261. 

3  7  Stavers  v.  Curling,  3  Bing.  N.  C.  355.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  221;  Cent.  Dig.  §§  1015-1032;  "Sales,"  Dec.  Dig.  (Key-No.)  §  250; 
Cent.  Dig.  §  709. 

3  8  Bettini  v,  Gye.  1  Q.  B.  Div.  183.  And  see  Graves  v.  Legg,  9  Exch.  709; 
Behn  v.  Burness,  3  Best.  &  S.  750;  Watchman  v.  Crook,  5  Gill  &  J.  (Md.) 
239;  Maryland  Fertilizing  &  Mfg.  Co.  v.  Lorentz,  44  Md.  218;  Grant  v.  John- 
son, 5  N.  Y.  247;  Knight  v.  Worsted  Co.,  2  Cush.  (Mass.)  271,  287;  Mill- 
Dam  Foundry  v.  Hovey,  21  Pick.  (Mass.)  417,  per  Shaw,  C.  J.;  ante,  p.  560. 
Bee  "Contracts,"  Dec.  Dig.  (Key-No.)  §  221;    Cent.  Dig.  §§  1015-1032. 

8  9  Freeman  v.  Taylor,  8  Bing.  124;  Franklin  v.  Miller,  4  Adol.  &  B.  599; 
Tarraljochia  v.  Hickie,  1  Hurl.  &  N.  183 ;  McAndrew  v.  Chappie,  L.  R.  1  C. 
P.  700;  Bradford  v.  Williams,  L.  R.  7  Exch.  259;  Jackson  v.  Insurance  Co., 
L.  R.  10  C.  P.  125;  Poussard  v.  Spiers,  1  Q.  B.  Div.  410;  Rioux  v.  Brick 
Co.,  72  Vt  148,  47  Atl.  406;  West  v.  Bechtel,  125  Mich.  144,  84  N.  W.  09,  51 
L.  R.  A.  791.     As  to  waiver  of  full  performance.     District  of  Columbia   v. 


oS4  DISCHARGE    OF    CONTRACT  (Ch.  11 

A  condition  precedent  may  assume  the  form  either  of  a  state- 
ment or  of  a  promise. 

Waiver  and  Acquiescence  in  Breach  of  Condition. 

A  condition  precedent  may,  in  the  course  of  the  performance  of 
the  contract,  change  its  character,  and  in  effect  cease  to  be  a  condi- 
tion. Acquiescence  in  its  breach  may  in  effect  turn  it  into  a  mere 
warranty.  In  other  words,  a  breach  of  condition,  which  would 
discharge  a  party  if  at  once  treated  by  him  as  a  discharge,  will  not 
have  this  effect  if  he  goes  on  with  the  contract  instead  of  repudiat- 
ing it,  and  takes  a  benefit  under  it;  but  in  such  a  case  he  can  only 
recover  his  damages. *°  "Although  conditions  precedent  must  be 
performed,  and  a  partial  performance  is  not  sufficient,  yet  when  a 
contract  has  been  performed  in  a  substantial  part,  and  the  other 
party  has  voluntarily  received  and  accepted  the  benefit  of  the  part 
performance,  knowing  that  the  contract  was  not  being  fully  per- 
formed, the  latter  may  be  thereby  precluded  from  relying  upon  the 
performance  of  the  residue  as  a  condition  precedent  to  his  liability 
to  pay  for  what  he  has  received,  and  may  be  compelled  to  rely  upon 
his  claim  for  damages  in  respect  to  the  defective  performance."  *^ 

An  illustration  of  such  a  change  in  the  effect  of  a  condition  is 
afforded  by  a  leading  English  case,  in  which  it  appeared  that  the 
defendant  had  chartered  the  plaintiff's  vessel  for  a  certain  voyage, 
and  promised  to  pay  a  certain  sum  in  full  for  her  use  on  condition 
of  her  taking  a  cargo  of  not  less  than  1,000  tons.  The  defendant 
had  the  use  of  the  vessel  as  agreed  upon,  but  it  appeared  that  she 
was  not  capable  of  holding  so  large  a  cargo  as  had  been  made  a 
condition  of  the  contract.  To  an  action  brought  for  nonpayment 
of  the  freight,  the  defendant  pleaded  a  breach  of  this  condition. 
The  term  in  the  contract  which  has  been  described  was  held  to 
have  amounted,  in  its  inception,  to  a  condition,  and  it  was  said 
that  the  defendant,  while  the  contract  was  still  executory,  might 
have  rescinded,  and  refused  to  put  any  goods  on  board,  but  as  the 

Iron  Works,  181  U.  S.  453,  21  Sup.  Ct.  680,  45  L.  Ed.  948.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  §  221;   Cent.  Dig.  §§  1015-1032. 

40Behn  v.  Burness,  3  Best  &  S.  756;  Graves  v.  Legg,  9  Exch.  709;  Pust 
V.  Dowie,  Law  J.  32  Q.  B.  179;  Phillips  &  Colby  Const.  Co.  v.  Seymour,  91 
U.  S.  646,  23  L.  Ed.  341;  Wiley  v.  Inhabitants  of  Athol,  150  Mass.  426,  23 
N.  E.  311,  6  L.  R.  A.  342 ;  Sykes  v.  City  of  St.  Cloud,  GO  Minn.  442,  62  N.  W. 
613 ;  Young  Bros.  Mach.  Co.  v.  Young,  111  Mich.  118,  69  N.  W.  152 ;  Charley 
V.  Potthoflf,  118  Wis.  258,  95  N.  W.  124;  Carter  v.  Scargill,  L.  R.  10  Q.  B. 
564;  Bechtel  v.  Cone,  52  Md.  698;  Foley  v.  Crow,  37  Md.  51.  See  ''Con- 
tracts," Dec.  Dig.  (Key-No.)  §  S16;   Cent.  Dig.  §§  1480-1^92. 

41  Wiley  T.  Inhabitants  of  Athol,  l.iO  Mass.  426,  23  N.  E.  311,  6  L.  R.  A 
342,  per  Field,  J.  See  ''Contracts,"  Dec.  Dig.  {Key-No.)  §  S16;  Cent.  Dig.  §§ 
U80-U92. 


g§  249-253)  BY  BREACH  583 

contract  had  been  executed,  and  the  defendant  had  received  a  sub- 
stantial part  of  the  consideration,  he  could  not  rescind  the  contract, 
but  must  be  left  to  his  cross  action  for  damages.*'' 

A  further  illustration  is  found  in  the  case  of  an  executed  sale. 
We  have  already  seen  that  in  an  executory  sale  an  undertaking 
that  goods  shall  possess  a  certain  quality  is  in  effect  a  condition, 
and  that  where  goods  are  sold  by  description  it  is  an  implied  con- 
dition that  they  shall  conform  to  the  description,  and  that  under 
some  circumstances  other  conditions,  such  as  that  the  goods  shall 
be  merchantable,  v\^ill  be  implied.*^  In  such  cases,  where  the  goods 
tendered  do  not  fulfill  the  conditions,  it  is  very  generally  held  that 
the  buyer  may  nevertheless  accept  them,  and  in  effect  treat  the 
breach  of  condition  as  a  breach  of  warranty.**  Some  cases,  howev- 
er, draw  a  distinction  between  conditions  and  warranties,  and  hold 
that,  while  an  express  warranty  survives  acceptance,  a  condition 
that  the  goods  shall  be  of  a  certain  description  does  not  survive, 
so  far  as  concerns  visible  defects,  when  the  buyer  had  an  oppor- 
tunity to  inspect,  but  that  if,  after  opportunity  for  inspection,  the 
buyer  accepts  the  goods,  he  is  precluded  from  recovering  damages 
for  any  variation  between  the  goods  as  delivered  and  as  described.*" 

It  seems  that  the  performance  must  be  of  a  substantial  part  of 
the  contract,*'  and  that  the  acceptance  must  be  under  such  cir- 

4  2  Pust  V.  Dowie,  Law  J.  32  Q.  B.  179.  See  "Contracts,"  Dec.  Dig.  {Key- 
A'o.)   §  316;   Cent.  Dig.  §§  14S0-1J,91. 

4  3  Ante,  p.  ~)S0. 

4  4  Bagley  v.  Rolling-Mill  Co.  (C.  C.)  21  Fed.  159;  English  v.  Commission 
Co.  (C.  C.)  48  Fed.  197;  Id.,  6  C.  C.  A.  416,  57  Fed.  451;  Reynolds  v.  Palmer 
(C.  C.)  21  Fed.  433;  Wolcott  v.  Mount,  36  N.  J.  Law,  262,  13  Am.  Rep.  438; 
Holloway  v.  Jacoby,  120  Pa.  583,  15  Atl.  487,  6  Am.  St  Rep.  737;  Lewiajr^ 
Rountree,  78  N.  C.  323;  Eagan  Co.  v.  Johnson,  82  Ala.  233,  2  South.  302; 
Dayton~v.  Hooglund,  39  Ohio  St.  671;  Morse  v.  Moore,  83  Me.  473,  22  Atl. 
862,  13  L.  R.  A.  224,  23  Am.  St.  Rep.  783;  Tacoma  Coal  Co.  v.  Bradley,  2 
Wash.  600,  27  Pac.  454,  26  Am.  St.  Rep.  890.  See,  also.  Marsh  v.  McPherson, 
105  U.  S.  709,  26  L.  Ed.  1139.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §§  176,  179; 
Cent.  Dig.  §§  J,S6-4U,  456-468. 

45  Haase  v.  Nonnemacher,  21  Minn.  486;  Maxwell  v.  Lee,  34  Minn.  511, 
27  N.  W.  196 ;  Thompson  v.  Llbby,  35  Minn.  443,  29  N.  W.  150  (implied  condi- 
tion of  merchantableness  does  not  survive  acceptance  in  respect  to  visible  de- 
fects) ;  Comstock  v.  Sanger,  51  Mich.  497,  16  N.  W.  872 ;  McClure  v.  Jef- 
ferson, 85  Wis.  208,  54  N.  W.  777.  This  rule  prevails  in  New  York,  Coplay 
Iron  Co.  v.  Pope,  108  N.  Y.  232,  15  N.  E.  335 ;  except  as  to  a  warranty  that 
goods  shall  conform  to  sample.  Zabriskie  v.  Railroad  Co.,  131  N.  Y.  72,  29  N. 
E.  1006.     See  "Sales,"  Dec.  Dig.   (Key-No.)   S  176;    Cent.  Dig.  §§  iS6-J,J,J,. 

4  6  Anson,  Cont.  (4th  Ed.)  308,  citing  Ellen  v.  Topp,  6  Exch.  424.  See  "Con- 
trads,"  Dec.  Dig.  (Key-No.)  §  S16;  Cent.  Dig.  §§  IJtSO-JJfdl;  "Sales,"  \Dea. 
Dig.  (Key-No.)  §§  176,  179;   Cent.  Dig.  §§  JiSC-J,U,  4o6-J,68. 


586  DISCHARGE    OF    CONTRACT  (Ch.  11 

cumstances  as  to  show  that  the  party  accepting  knew,  or  ought  to 
have  known,  that  the  contract  was  not  being  fully  performed.*^ 

Breach  Caused  by  tlie  Other  Party 

Though  performance  by  one  party  of  a  part  or  the  whole  of  his 
promise  may  be  a  condition  precedent  to  the  liability  of  the  other 
party  to  perform,  still  his  failure  to  perform  will  not  discharge  the 
latter,  if  the  latter  prevented  performance.  In  such  a  case  the  par- 
ty so  prevented  is  discharged  from  further  performance,  and  may 
recover  damages  for  the  breach  or  recover  on  the  quantum  mel-uit 
for  his  part  performance.** 

Failure  of  Consideration 

"Strictly  speaking,  there  can  be  no  such  thing  as  a  failure  of  con- 
sideration. Either  the  promisor  receives  the  consideration  he  bar- 
gained for,  or  he  does  not.  If  he  does  not  receive  the  considera- 
tion, there  is  no  contract;  if  he  does  receive  the  consideration, 
there  can  be  no  failure  of  consideration  thereafter."  *°  The  term 
is,  however,  frequently  used  to  express  the  situation  which  arises 
where  the  promisee  fails  wholly  or  partly  to  perform  a  promise 
which  was  the  consideration  of  the  promise  of  the  promisor.  Some 
cases  usually  considered  under  the  head  of  failure  of  consideration 
may  be  mentioned  here. 

As  we  have  seen,  where  there  is  a  contract  for  the  sale  of  goods 
by  description  it  is  an  implied  condition  of  the  contract  that  the 
goods  shall  correspond  to  the  description.  By  accepting  the  goods 
tendered,  indeed,  the  buyer  is  ordinarily  held  to  have  waived  his 
right  to  rely  on  the  condition,  and  the  condition,  in  effect,  becomes 
a  warranty.''"  Where,  however,  a  thing  is  sold  as  being  an  article 
of  a  specific  description,  and  from  latent  defect,  unknown  to  the 
buyer,  it  is  in  substance  not  an  article  of  that  description,  but  an 
article  of  no  value,  the  buyer  may  rescind  the  sale  notwithstanding 
acceptance,  and  may  defend  an  action  for  the  price  or  may  recover 

4  7  Wiley  V.  Inhabitants  of  Athol,  150  Mass.  426.  23  N.  E.  311,  6  L.  R.  A. 
342,  per  Field,  J.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  278;  Cent.  Dig.  §§ 
1207-1215. 

*8Ante,  p.  558;  UNITED  STATES  v.  BEHAN,  110  U.  S.  338,  4  Sup.  Ct. 
81,  28  L.  Ed.  168,  Throckmorton  Cas.  Contracts,  409;  Hinckley  v.  Steel  Co., 
121  U.  S.  264,  7  Sup.  Ct.  875,  30  L.  Ed.  967;  Hood  v.  Exploration  Co.  (C.  C.) 
106  Fed.  408;  Mooney  v.  Iron  Co..  82  Mich.  263,  46  N.  W.  370;  Caldwell  v. 
Myers,  2  S.  D.  506,  51  N.  W.  210;  Thompson  v.  Gaffey,  52  Neb.  317,  72  N.  W. 
314;  Wellston  Coal  Co.  v.  Paper  Co.,  57  Ohio  St  182,  48  N.  E.  888;  South- 
ern Pac.  Co.  V.  Well  Works,  172  111.  9,  49  N.  E.  575;  San  Francisco  Brid-e 
Co.  V.  Improvement  Co.,  119  Cal.  272,  51  Pac.  335.  See  "Contracts," .  Dec. 
Dig.   (Key-yo.)   §§  SOO,  SOS;    Cent.  Dig.  §§  7374,  im-l-'{29. 

*9  Harriman,  Cont  §  524.     See  9  Cyc,  Law  &  Proc.  369. 

BO  Ante,  p.  585, 


§§  249-253)  BY  BREACH  587 

the  price  if  he  has  paid  it.  In  such  cases  it  is  commonly  said  that 
there  has  been  a  total  failure  of  consideration.  Such  a  state  of  facts 
occurs  where  the  thing  sold  is  a  bill  or  note  or  other  security,  and 
it  turns  out  to  be  invalid  because  of  forgery  "^  or  for  other  caus- 
es; "^  the  instrument  thus  being  not  what  it  purports  to  be,  but  a 
mere  worthless  piece  of  paper.  So  in  the  sale  of  a  patent,  if  the 
patent  is  void."^  But  though  the  thing  sold  thus  proves  to  be 
worthless,  if  the  buyer  assumed  the  risk  of  its  validity,  and  conse- 
quently obtained  the  identical  thing  which  he  intended  to  buy,  there 
is  no  failure  of  consideration."* 

Where  on  the  sale  of  personal  property  the  buyer  accepts  the 
goods,  he  may  still  bring  an  action  for  damages  if  the  goods  are  in- 
ferior in  quality  to  that  warranted ;  or,  instead  of  bringing  an  ac- 
tion for  damages,  he  may  wait  till  he  is  sued  for  the  price,  and  then 
set  up  the  breach  of  warranty  in  diminution  of  the  price  pro  tanto 
as  a  defense.''    And  to-day  in  most  states  such  damages  may  be 

61  Jones  V.  Ryde,  5  Taunt.  4SS ;  Gurney  v.  Womersley,  4  El.  &  Bl.  133 ; 
Terry  v.  Bissell,  26  Conn.  23;  Aldrich  v.  Jackson,  5  R.  I.  218;  Merriam  v. 
Wolcott,  3  Allen  (Mass.)  258,  80  Am.  Dec.  69.  See,  also,  Whitney  v.  Bank, 
45  N.  Y.  303 ;  Bell  v.  Dagg,  60  N.  Y.  528.  See  "Bills  and  Notes,"  Dec.  Dig. 
(Key-No.)   §  97;    Cent.  Dig.  §§  166-212. 

5  2  Burchfield  r.  Moore,  2  El.  &  Bl.  683  (material  alteration) ;  Gompertz  v. 
Bartlett,  2  El.  &  Bl.  849,  23  Law  J.  Q.  B.  65  (a  bill  of  exchange  purporting 
to  be  a  foreign  bill,  which  turned  out  to  be  a  domestic  bill,  and  invalid  be- 
cause unstamped)  ;  Wood  t.  Sheldon,  42  N.  J.  Law,  421,  36  Am.  Rep.  523 
(scrip  illegally  and  fraudulently  issued)  ;  Paul  v.  City  of  Kenosha,  22  Wis. 
266,  94  Am.  Dec.  598 ;  Meyer  v.  Richards,  163  U.  S.  385,  16  Sup.  Ct  1148,  41 
L.  Ed.  199  (bond  stricken  with  nullity  by  constitutional  provision  adopt-ed 
after  act  authorizing  issue).  See  "Bills  and  Notes,"  Dec.  Dig.  {Keg-No.)  § 
97;    Cent.  Dig.  §§  166-212;    "Contracts,"  Cent.  Dig.  §§  898-1,00. 

BsNash  V.  Lull,  102  Mass.  60,  3  Am.  Rep.  435;  Harlow  v.  Putnam,  124 
Mass.  553;  Shepherd  v.  Jenkins,  73  Mo.  510;  Green  v.  Stuart,  7  Baxt 
(Tenn.)  418;  Herzog  v.  Heyman,  151  N,  Y.  587,  45  N.  E.  1127,  56  Am.  St. 
Rep.  646.  Cf.  Chemical  Electric  Light  &  Power  Co.  v.  Howard,  148  Mass. 
3.52,  20  N.  E.  92,  2  L.  R.  A.  168 ;  Gloucester  Isinglass  &  Glue  Co.  v.  Cement 
Co.,  154  Mass.  92,  27  N.  E.  1005,  2  L.  R.  A.  563,  26  Am.  St.  Rep.  214.  See 
"Bills  and  Notes,"  Dec.  Dig.   {Key-No.)  §  97;    Cent.  Dig.  §§  166-212. 

64  Lambert  v.  Heath,  15  Mees.  &  W.  487;  Bryant  v.  Pember,  45  Vt.  487; 
Blattenberger  v.  Holman,  103  Pa.  555 ;  Neidefer  v.  Chastain,  71  Ind.  363,  36 
Am.  Rep.  198;  Wheat  v.  Cross,  31  Md.  99,  1  Am.  Rep.  28;  Hunting  v.  Dow- 
ner, 151  Mass.  275,  23  N.  E.  832.  On  this  principle,  it  has  been  held  that 
where  bonds  are  sold  which  are  invalid  because  the  corporation  has  not 
power  to  issue  them,  or  failed  to  comply  with  the  law  in  their  Issuance,  the 
purchaser  Is  liable  on  his  promise  to  pay.  Otis  v.  Cuilum,  92  U.  S.  447,  23  L. 
Ed.  496;  Harvey  v.  Dale,  96  Cal.  100,  31  Pac.  14;  Sutro  v.  Rhodes,  92  Cal. 
117,  28  Pac.  98.  But  see  Hurd  v.  Hall,  12  Wis.  112.  See  "Bills  and  Notes," 
Dec.  Dig.  {Key-No.)  §  97;   Cent.  Dig.  §§  166-212. 

66  Mondel  v.  Steel,  8  Mees.  &  W.  858;  Lyon  t.  Bertram,  20  How.  149,  154, 
15  L.  Ed.  847;    Bradley  v.  Rea,  14  Allen  (Mass.)  20;    Dailey  v.  Green,  15  Pa. 


588  DISCHARGE    OF    CONTRACT  (Ch.  11 

set  up  by  way  of  defense  in  an  action  on  a  note  given  for  the 
price.'''  In  such  cases,  where  the  article  sold  by  reason  of  failure 
to  conform  to  the  warranty  is  wholly  worthless,  so  that  the  breach 
of  warranty  is  a  complete  defense,  it  is  often  said  that  there  is  an 
entire  failure  of  consideration ;  '^  and  if  the  damages  recoverable 
for  the  breach  of  warranty  would  simply  reduce  the  amount  of  the 
recovery,  it  is  often  said  that  there  has  been  a  partial  failure  of 
consideration. °* 

Again,  upon  a  sale  of  personal  property,  the  seller  impliedly  war- 
rants his  title  to  the  goods  sold,  unless  the  circumstances  are  such 
as  to  show  that  the  seller  is  transferring  only  such  property  as  he 
had  in  the  goods. ^*  Where  the  circumstances  are  such  that  a  war- 
ranty of  title  is  to  be  implied,  if  it  turns  out  that  the  seller  was  not 
in  fact  the  owner,  it  is  said  that  the  consideration  fails,  and  in  such 
case  the  buyer  can  defend  an  action  for  the  price,  or  recover  it  if  he 
has  paid  it.'° 

Where  the  subject-matter  of  the  sale  is  land,  and  it  turns  out 
that  the  vendor  had  no  title,  the  purchaser  may  interpose  the  fail- 
ure of  title  as  a  defense  in  an  action  for  the  price  or  upon  notes 
given  therefor.'^    In  the  case  of  the  sale  of  land  with  covenants  by 

118,  126;  Dayton  v.  Hooglund,  89  Ohio  St.  671;  Underwood  v.  Wolf,  131  111. 
425,  23  N.  E.  398,  19  Am.  St.  Rep.  40 ;  Morehouse  v.  Comstock,  42  Wis.  626 ; 
Polhemus  v.  Helman,  45  Cal.  573 ;  Breen  v.  Moran,  51  Minn.  525,  53  N.  W. 
755;  Central  Trust  Co.  v.  Manufacturing  Co.,  77  Md.  202,  26  Atl.  493.  See 
"Sales,"  Deo.  Dig.  {Key-No.)  §§  j^BS,  Ji28;    Cent.  Dig.  §§  1201,  1208,  1214-1223. 

58  Withers  v.  Greene,  9  How.  213,  13  L.  Ed.  109;  Rufif  v.  Jarrett,  94  111. 
475 ;  Wentworth  v.  Dows,  117  Mass.  14,  per  Colt,  J. ;  Wright  v.  Davenport, 
44  Tex.  164;  Bayview  Brewing  Co.  v.  Techlenberg,  19  Wash.  469,  53  Pac 
724.     See  "Sales,"  Dec.  Dig.  (Key-No.)  §  21 ;   Cent.  Dig.  §§  S3-3S. 

5  T  Thompson  v.  Manufacturing  Co.,  29  Kan.  476;  Toledo  Sav.  Bank  v. 
Rathmann,  78  Iowa,  288,  43  N.  W.  193;  Aultman  &  Taylor  Co.  v.  Trainer, 
80  Iowa,  451,  45  N.  W.  757;  Brown  v.  Weldon,  99  Mo.  564,  13  S.  W.  342. 
See  "Sales,"  Dec.  Dig.  (Key-No.)  §  21;   Cent.  Dig.  §§  SS-38. 

58  Stevens  v.  Johnson,  28  Minn.  172,  9  N.  W.  677 ;  Nichols  &  Shepard  Co. 
V.  Soderquist,  77  Minn.  509,  SO  N.  W.  630;  Ri^ss  Lumber  &  Mill  Co.  v.  Water 
Co.,  120  Cal.  521,  52  Pac.  995,  65  Am.  St.  Rep.  186.  See  "Sales,"  Dec.  Dig. 
(Key-No.)  §  21;   Cent.  Dig.  §§  S3-^8. 

59Benj.  Sales  (6th  Am.  Ed.)  §  639;    Tiffany,  Sales,  165. 

aoEichholz  v.  Bannister,  17  C.  B.  (N.  S.)  708;  Chenault  v.  Bush,  84  Ky. 
528,  2  S.  W.  160;  Flandrow  v,  Hammond,  148  N.  Y.  129,  42  N.  E.  511.  And 
see  Gould  v.  Bourgeois,  51  N.  J.  Law,  361,  18  Atl.  64.  See  "Sales,"  Dec.  Dig. 
(Key-No.)   §  263;    Cent.  Dig.  §§  11,6-151,  163. 

81  Murphy  v.  Jones,  7  Ind,  529 ;  Anderson  v.  Armstead,  69  111.  452 ;  Fer- 
guson V.  Teel,  82  Va.  690 ;  Curtis  v.  Clark,  133  Mass.  509 ;  Baird  v.  Laevison, 
91  Ky.  204,  15  S.  W.  252;  Redding  v.  Lamb,  81  Mich.  318,  45  N.  W.  997; 
Hall  V.  McArthur,  82  Ga.  572,  9  S.  E.  534.  See  "Vendor  and  Purchaser;'  Dec. 
Dig.  (Key -No.)  §  15;   Cmt.  Dig.  i  16. 


§§  249-253)  BY  BREACH  589 

the  vendor,  questions  have  arisen  as  to  whether  the  failure  of  the 
title  amounts  to  a  total  failure  of  consideration.  In  a  Massachu- 
setts case  a  note  had  been  given  in  consideration  of  a  conveyance 
of  land  by  deed,  with  the  usual  covenants  of  seisin  and  warranty, 
and  the  title  to  the  land  failed  entirely.  The  question  raised  was 
whether  that  want  of  title  was  an  entire  want  of  consideration  for 
the  note,  so  as  to  render  it  nudum  pactum,  or  whether  the  cove- 
nants in  the  deed  were  of  themselves  a  sufficient  consideration.  It 
was  held,  contrary  to  a  decision  in  Maine, ®^  that  the  total  failure 
of  title  was  a  total  failure  of  consideration,  and  that  the  note  was 
therefore  void.  "The  promise  is  not  made  for  a  promise,"  it  was 
said,  "but  for  the  land.  The  moving  cause  is  the  estate,  and,  if 
that  fails  to  pass,  the  promise  is  a  mere  nudum  pactum."  " 

Same — Subsequent  Failure  of  Executed  Consideration 

If  the  promisor  receives  a  consideration  for  his  promise,  the  fact 
that  it  subsequently  diminishes  in  value,  or  becomes  worthless, 
does  not  release  him  from  liability  on  his  promise.**  The  transfer 
and  delivery  of  a  note,  for  instance,  by  the  payee  to  the  maker 
of  another  note,  in  exchange  therefor,  is  a  valuable  consideration 
for  the  latter  note,  and  the  fact  that  the  former  note  subsequently 
becomes  worthless  does  not  constitute  a  failure  of  consideration.®^ 
So,  if  a  patent  is  sold,  the  fact  that  it  afterwards  becomes  value- 
's Jenness  V.  Parker,  24  Me.  289;    Lloyd  v.   Jewell,  1   Greenl.    (Me.)  360, 

10  Am.  Dec.  73.  And  see  Black  v.  Walker,  98  Ga.  31,  26  S.  E.  477 ;  Bennett 
V.  Pierce,  45  W.  Va.  654,  31  S.  E.  972.  See  "Vendor  <md  Purchaser,"  Dec. 
Dig.   (Key-No.)  §  SOS;   Cent.  Dig.  §§  862,  877-899. 

63  Rice  V.  Goddard,  14  Pick.    (Mass.)   293.     And  see  Frisbee  v.  Hofifnagle, 

11  Johns.  (N.  Y.)  50;  McAllister  v.  Reab,  4  Wend.  (N.  Y.)  483;  Durment  v 
Tuttle,  50  Minn.  426.  52  N.  W.  909;  Steinhauer  v.  Witman,  1  Serg.  &  R 
(Pa.)  447;  Gray  v.  Handkinson's  Heirs,  1  Bay  (S.  C.)  278;  Bell's  Adm'r  v 
Huggins'  Adm'rs,  1  Bay  (S.  C.)  327;  Trask  v.  Vinson,  20  Pick.  (Mass.)  110 
Chandler  v.  Marsh,  3  Vt.  162 ;  Cook  v.  Mix,  11  Conn.  432 ;  *  Tillotson  v 
Grapes,  4  N.  H.  448;  Tyler  v.  Young,  2  Scam.  (111.)  447,  35  Am.  Dec.  116; 
Davis  V.  McVickers,  11  111.  327.  But  see  Sunderland  v.  Bell,  39  Kan.  21,  17 
Pae.  600;  McLeod  v.  Baruum,  131  Cal.  605,  63  Pac.  924.  See  "Vendor  and 
Purchaser,"  Dec.  Dig.   (Key-No.)  §§  15,  808;    Cent.  Dig.  §§  16,  877-899. 

6*  Rice  V.  Grange,  131  N.  Y.  149,  30  N.  E.  46;  Harmon  v.  Bird,  22  Wend. 
(N.  Y.)  113;  Perry  v.  Buckman,  33  Vt.  7;  Potter  v.  Earnest,  45  Ind.  416; 
Smock  V.  Pierson,  68  Ind.  405,  34  Am.  Rep.  269;  Blackman  v.  Dowling,  63 
Ala.  304;  Byrne  v.  Cummings,  41  Miss.  192;  Daniel  v.  Tarver,  70  Ga.  203; 
Dowdy  V.  McLellan,  52  Ga.  408 ;  Bean  v.  Proseus,  3  Cal.  Unrep.  558,  31  Pac. 
49;  Topp  V.  White,  12  Heisk.  (Tenn.)  165.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §§  85,  86;    Cent.  Dig.  §§  399-402. 

•  5  Rice  V.  Grange,  131  N.  Y.  149,  30  N.  E.  46.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §§  85,  86;    Cent.  Dig.  §§  S99-40i. 


590  DISCHARGE    OF    CONTRACT  (Ch.  11 

less  because  of  improvements  does  not  release  the  purchaser  from 
liability  for  the  purchase  money.®* 

Recovery  of  Money  Paid 

Ordinarily,  if  a  person  voluntarily  pays  another  money,  he  cannot 
maintain  an  action  to  recover  it  back.  This  rule,  however,  does 
not  apply  where  money  is  paid  under  a  contract,  and  the  con- 
sideration fails.  The  money  may  be  recovered  back  in  such  a 
case.®^ 


DISCHARGE  BY  IMPOSSIBILITY  OF  PERFORMANCE 

254.  Impossibility  of  performance  arising  subsequent  to  the  for- 
mation of  a  contract  does  not  discharge  the  promisor,  even 
though  he  was  not  in  fault,  except — 

EXCEPTIONS — (a)  Where  the  impossibility  is  created  by  law. 

(b)  Where  the  subject-matter  is  destroyed,  the  rule  being  that, 

where  the  continued  existence  of  a  specific  thing  is  essen- 
tial to  the  performance  of  a  contract,  its  destruction,  from 
no  default  of  either  party,  operates  as  a  discharge. 

(c)  In  case  of  incapacity  for  personal  services,  the  rule  being 

that  a  contract  which  has  for  its  object  the  rendering  of 
personal  services  is  discharged  by  the  death  or  incapacitat- 
ing illness  of  the  promisor.®* 

(d)  In   some  jurisdictions,  where   conditions   essential   to   per- 

formance do  not  exist,  the  promisor  is  relieved  from  his 
obligation  to  perform,  but  this  exception  has  not  been 
recognized  in  most  jurisdictions. 

Obvious  physical  impossibility,  or  legal  impossibility,  which  is 
apparent  uj)on  the  face  of  the  promise,  avoids  the  contract.  There 
is  no  question  of  discharge,  for  there  has  in  fact  never  been  a 
contract.  The  reason  for  this  is,  as  we  have  seen,  that  the  promise 
is  an  unreal  consideration  for  any  promise  given  in  return.®® 

«« Harmon  v.  Bird,  22  Wend.  (N.  Y.)  113.  See  "Contracts,"  Dec.  Dig. 
(Eeij-No.)  §§  S3-S6;    Cent.  Dig.  §§  3SS-Ii02. 

8  7  Giles  V.  Edwards,  7  T.  li.  181;  Claflin  v.  Godfrey,  21  Pick.  (Mass.)  1; 
Steele  v.  Hobbs,  16  111.  59;  Darst  v.  Brockway,  11  Ohio,  462;  Foss  v.  Eich- 
ardson,  15  Gray  (Mass.)  303;  Chapman  v.  City  of  Brooklyn,  40  N.  Y.  372; 
Leach  v.  Tilton,  40  N.  H.  473  ;  Richter  v.  Stock  Co.,  129  Cal.  367,  62  Pac.  39. 
And  see  cases  cited  supra,  notes  51-53.  The  obligation  to  repay  is  quasi 
contractual.  See  post,  p.  640.  See  "Contracts"  Dec.  Dig.  {Key-Xo.)  g  6J; 
Cent.  Dig.  §§  899-1,01. 

68  Anson,  Cont    (4th  Ed.)  320-325.  «»  Ante,  p.  166. 


§    254)  BY   IMPOSSIBILITY    OF   PERFORMANCE  591 

Again,  impossibility  which  arises  from  the  nonexistence  of  the 
subject-matter  of  the  contract  avoids  it.''"  Here,  also,  there  is  no 
question  of  discharge  from  a  contract.  The  question  is  one  of 
avoidance  of  the  contract,  and  relates  to  its  formation. 

We  are  here  to  deal  with  those  cases  in  which  a  valid  contract 
has  been  made,  but  has  become  impossible  of  performance  because 
of  facts  and  circumstances  arising  subsequent  to  its  formation. 
The  general  rule  is  that  such  impossibility,  even  though  it  arises 
without  any  fault  on  the  part  of  the  promisor,  does  not  discharge 
him  from  his  liability  under  the  contract.  Of  course  he  cannot 
perform  his  promise,  as  that  has  become  impossible;  but  this  is 
no  excuse,  and  he  may  be  held  liable  as  for  failure  to  perform 
As  we  have  seen  in  speaking  of  conditions  subsequent,  the  prom- 
isor may,  by  the  terms  of  the  contract,  make  the  performance  of 
his  promise  conditional  upon  its  continued  possibility,  and  if 
he  does  so  the  promisee  takes  the  risk,  and  must  bear  the  loss 
if  performance  becomes  impossible.  If,  however,  the  promisor 
makes  his  promise  unconditionally,  it  is  his  own  lookout,  and  he 
takes  the  risk  of  being  held  liable,  even  though  performance  be- 
comes impossible  by  reason  of  circumstances  beyond  his  control.''^ 
"Where  the  contract  is  to  do  a  thing  which  is  possible  in  itself, 

7  0  Ante,  p.  251. 

71  Para  dine  v,  Jane,  Aleyn,  26;  Ford  v.  Cotesworth,  L.  R.  4  Q.  B.  127; 
Kearon  v.  Pearson,  7  Hurl.  &  N.  386;  The  Harriman,  9  Wall.  161,  19  L.  Ed. 
629;  Jones  v.  U.  S.,  96  U.  S.  24,  24  L.  Ed.  644;  Jacksonville,  M.,  P.  Ry.  & 
Nav.  Co.  V.  Hooper,  160  U.  S.  514,  16  Sup.  Ct.  379,  40  L.  Ed.  515 ;  Beebe  v. 
Johnson,  19  Wend.  (N.  Y.)  500,  32  Am.  Dec.  518;  Harmony  v.  Bingham,  12 
N.  Y.  99,  62  Am.  Dec.  142 ;  Booth  v.  Mill  Co.,  60  N.  Y.  487 ;  Stees  v.  Leonard. 
20  Minn.  494  (Gil.  448)  ;  Harrison  v.  Railway  Co.,  74  Mo.  364,  41  Am.  Rep. 
318;  School  Dist  No.  1  v.  Dauchy,  25  Conn.  530,  68  Am.  Dec.  371;  Adams 
V.  Nichols,  19  Pick.  (Mass.)  275,  31  Am.  Dec.  137;  Eugster  v.  West,  35  La. 
Ann.  119,  48  Am.  Rep.  232;  School  Trustees  v.  Bennett,  27  N.  J.  Law,  513, 
72  Am.  Dec.  373 ;  Summers  v.  Hibbard,  Spencer,  Bartlett  &  Co.,  153  111.  102, 
38  N.  E.  899,  46  Am.  St.  Rep.  872;  Middlesex  Water  Co.  v.  Knappmann 
Whiting  Co.,  64  N.  J.  Law,  240,  45  Atl.  693,  49  L.  R.  A.  572,  81  Am.  St.  Rep. 
467 ;  Reichenbach  v.  Sage,  13  Wash.  304,  43  Pac.  354,  52  Am.  St.  Rep.  51 ; 
Rowe  V.  Town  of  Peabody,  207  Mass.  226,  93  N.  E.  004;  John  Soley  &  Sons 
V.  Jones,  208  Mass.  561,  95  N.  B.  94;  Gravel  Switch,  etc.,  Telephone  Co.  v. 
Lebanon,  etc.,  Telephone  Co.,  139  Ky.  151,  129  S.  W.  559.  Where  a  person 
has  contracted  to  build  a  house,  he  is  neither  excused  from  performance,  nor 
entitled  to  recover  for  what  he  has  done,  by  the  fact  that  the  house  is  de- 
stroyed by  fire  or  other  cause  beyond  his  control,  before  its  completion  and 
acceptance  by  the  owner.  School  Trustees  v.  Bennett,  27  N,  J.  Law,  513,  72 
Am.  Dec.  373;  LawLng  v.  Rintles,  97  N.  C.  350,  2  S.  E.  252;  Dermott  v. 
Jones,  2  Wall.  1,  17  L.  Ed.  762 ;  Fildew  v.  Besley,  42  Mich.  100,  3  N.  W.  278, 
36  Am.  Rep.  433 ;  Vogt  v.  Hecker,  118  Wis.  300,  95  N.  W.  90.  And  see  Bas- 
trop, etc.,  Growers'  Ass'n  v.  Cochran  (Tex.  Civ.  App.)  1.38  S.  W.  11S8.  See 
"Contracts"  Dec.  Dig.  (Key-No.)  §  509;   Cent.  Dig.  §§  lU^t-U^f6. 


592  DISCHARGE    OF    CONTRACT  (Ch.  11 

the  performance  is  not  excused  by  the  occurrence  of  an  inevitable 
accident  or  other  contingency,  although  it  was  not  foreseen  by 
the  party,  nor  was  within  his  control."  '" 

In  an  old  case,  in  which  the  plaintiff  sued  for  rent  due  upon 
a  lease,  the  defendant  pleaded  that  a  foreign  prince  had  invaded 
the  realm  with  a  hostile  army,  and  expelled  defendant  from  the 
premises  demised,  whereby  he  could  not  take  the  profits  out  of 
which  the  rent  should  have  come.  The  court  held  that  this  was 
no  excuse,  "and  this  difference  was  taken:  that  where  the  law 
creates  a  duty  or  charge,  and  the  party  is  disabled  to  perform  it 
without  any  default  in  him,  and  hath  no  remedy  over,  there  the 
law  will  excuse  him.  As  in  the  case  of  waste,  if  a  house  be 
destroyed  by  tempest,  or  by  enemies,  the  lessee  is  excused. 
*  *  *  But  when  the  party,  by  his  own  contract,  creates  a  duty 
or  charge  upon  himself,  he  is  bound  to  make  Tt  good,  if  he  ma;y, 
notwithstanding  any  accident  by  inevitable"  necessity,  because 
he  might  have  provided  against  it  by  his  contract.  And  therefore, 
if  the  lessee  covenant  to  repair  a  house,  though  it  be  burnt  by 
lightning,  or  thrown  down  by  enemies,  yet  he  ought  to  repair  it,"  ''* 

Exceptions  to  the  Rule 

The  exceptions  to  the  rule  must  be  distinguished  from  the  cases 
in  which  the  act  of  God  is  said  to  excuse  from  nonperformance 
of  a  contract.  There  are,  as  we  have  seen,  certain  contracts  into 
which  the  act  of  God  is  introduced  as  an  express,  or,  by  custom, 
an  implied,  condition  subsequent  absolving  the  promisor;  but  there 
are  forms  of  impossibility  which  are  said  to  excuse  from  perform- 
ance because  "they  are  not  within  the  contract" — that  is  to  say, 
that  neither  party  can  reasonably  be  supposed  to  have  contem- 
plated their  occurrence,  so  that  the  promisor  neither  accepts  them 
specifically  nor  promises  unconditionally  in  respect  of  them.'^* 

7  2  Jones  V.  U.  S.,  96  U.  S.  24,  24  L.  Ed.  644.  See  "Contracts,"  Dec,  Dig. 
{Key-No.)  §  SOS;    Cent.  Dig.  §§  U09-1US. 

73  Paradine  v.  Jane,  Aleyn,  26.  See  "Contracts,"  Dec.  Dig.  (Eep-No.)  i 
SOS;  Cent.  Dig.  §§  U09-1W. 

7  4  Baily  v.  De  Crespiiniy,  L-  R-  4  Q.  B.  at  page  185.  If  the  Impossibility  is 
caused  by  the  act  of  the  promisor,  it  does  not  excuse  failure  to  perform. 
Ante,  p.  562,  The  exceptions  do  not  apply  where  a  person  has  an  option  to 
perform  his  contract  in  either  of  two  ways,  and  It  becomes  Impossible  of  per- 
formance in  one  of  the  ways  only.  In  such  a  case  he  must  perform  in  the 
other  way.  State  v.  Worthington's  Ex'rs,  7  Ohio,  171,  pt.  1 ;  Drake  v.  White, 
117  Mass.  10;  Jacquinet  v.  Boutron,  19  La.  Ann.  30;  Board  of  Education  v. 
Townsend,  63  Ohio  St.  514,  59  N.  E.  223,  52  L.  R.  A.  868.  See  "Contracts," 
Dec.  Dig.  {Key-No.)  §  SOS;   Cent.  Dig.  §§  U09-1US. 


§    254)  BY   IMPOSSIBILITY    OF   PERFORMANCE  593 

Same — Legal  Impossibility 

Legal  impossibility  arising  from  a  change  in  the  law  ^^  or  from 
the  exercise  of  governmental  authority '®  exonerates  the  prom- 
isor.^^  It  was  so  held  in  an  action  on  a  covenant  in  a  lease  from 
the  defendant  to  the  plaintiff,  by  which  the  defendant  agreed  that 
neither  he  "nor  his  assigns"  would,  during  the  term,  erect  any 
but  ornamental  buildings  on  adjoining  land,  which  had  been  re- 
tained by  the  defendant,  but  which  was  afterwards  taken  by  a 
railroad  company  under  legislative  authority,  and  used  for  the 
erection  of  a  station.  "The  legislature,"  it  was  said,  "by  compel- 
ling him  to  part  with  his  land  to  a  railway  company,  whom  he 
could  not  bind  by  any  stipulation,  as  he  could  an  assignee  chosen 
by  himself,  has  created  a  new  kind  of  assign,  such  as  was  not 
in  the  contemplation  of  the  parties  when  the  contract  was  entered 
into.  To  hold  the  defendant  responsible  for  the  acts  of  such  an 
assignee  is  to  make  an  entirely  new  contract  for  the  parties."  ^' 
This  exception  does  not  apply  to  the  full  extent  where  the  impos- 
sibility created  by  a  change  in  the  law  is  only  temporary.  In  such 
a  case  liability  to  perform  is  only  suspended,  and  the  promise 
must  be  performed  when  the  impossibility  ceases.'^® 

7  5  Othem-ise  If  Impossibility  Is  created  by  foreign  law.  Bunker  t.  Hodg- 
son, 3  Maule  &  S.  267 ;  Tweedie  Trading  Co.  v.  James  P.  McDonald  Co.  (D. 
C.)  114  Fed.  985.  Cf.  O'Neil  v.  Armstrong,  [1895]  2  Q.  B.  70.  See  "Con- 
tracts," Dec.  Dig.   {Key-No.)  §  SOS;    Cent.  Dig.  §§  1409-1U3. 

7  6  Adler  v.  Miles,  69  Misc.  Hep.  601,  126  N.  Y.  Supp.  135.  See  "Contracts," 
Dec.  Dig.   (Key-No.)  §  SOS;    Cent.  Dig.  §§  'U09-ll,l,3. 

7  7  Baily  v.  De  Crespigny,  L.  R.  4  Q.  B.  180;  Cordes  v.  Miller,  39  Mich.  581, 
33  Am.  Rep.  430;  Semmes  v.  Insurance  Co.,  13  Wall.  158,  20  L.  Ed.  490; 
Brick  Presbyterian  Church  v.  City  of  New  York,  5  Cow.  (N.  Y.)  538;  Jones 
V.  Judd,  4  N.  Y.  411;  Mississippi  &  T.  R.  Co.  v.  Green,  9  Heisk.  (Tenn.)  588; 
American  Mercantile  Exchange  v.  Blunt,  102  Me.  128,  66  Atl.  212,  10  L.  R.  A. 
(N.  S.)  414,  120  Am.  St.  Rep.  463,  10  Ann.  Cas.  1022.  And  see  Buffalo  E.  S. 
R.  Co.  V.  Railroad  Co.,  Ill  N.  Y.  132,  19  N.  E.  63,  2  L.  R.  A.  284.  A  railroad 
company  is  relieved  from  further  performance  of  a  contract  to  give  free 
transportation  to  certain  persons  in  consideration  of  the  conveyance  of  prop- 
erty by  the  passage  of  a  statute  forbidding  the  giving  of  free  transportation. 
Louisville  &  N.  R.  Co.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct.  265,  55  L.  Ed. 
297,  34  L.  R.  A.  (N.  S.)  671 ;  Cowley  v.  Northern  Pac.  R.  Co.,  68  Wash.  558, 
123  Pac.  998,  41  L.  R.  A.  (N.  S.)  559.  But  there  is  no  discharge  when  the 
law  merely  makes  performance  more  burdensome,  though  not  impossible. 
Baker  v.  Johnson,  42  N.  Y.  126;  Newport  News  &  M.  V.  Co.  v.  McDonald 
Brick  Co.'s  Assignee,  109  Ky.  4U8,  59  S.  W.  332.  See  "Contracts,"  Dec.  Dig. 
(Key-No.)  §  303;    Cent'.  Dig.  §§  l.'i00-ll',3. 

78  Baily  v.  De  Crespigny,  L.  R.  4  Q.  B.  180.  See  "Contracts,"  Deo.  Dig. 
(Key  No.)  §  SOS;   Cent.  Dig.  §§  lJ,09-l.',JiS. 

78iiadley  v.  Clarke,  8  Terra  R.   259;    Baylies  v.  Fettyplace,  7  Mass.  325. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  SOS;   Cent.  Dig.  S  l^iJ7. 
Clabk  Cont.(3d  Ed.) — .'iS 


594  DISCHARGE    OF    CONTRACT  (Ch.  11 

In  the  case  of  property  leased  for  the  sale  of  intoxicating  liq- 
uors, it  has  been  held  that  the  subsequent  enactment  of  a  law  during 
the  term  of  the  lease  forbidding  the  sale  of  intoxicating  liquors 
terminates  the  lease.*"  The  weight  of  authority,  however,  is  to 
the  contrary;*^  the  majority  holding  being  based  on  the  ground 
that  the  sale  of  intoxicating  liquors  is  well  known  to  be  subject 
to  legal  regulation  and  prohibition,  and  that  the  tenant  is  therefore 
not  justly  entitled  to  be  relieved  from  his  contract  upon  the 
happening  of  a  contingency  which  he  might  have  foreseen  and 
protected  himself  against  by  express  agreement.  And  the  cases 
are  agreed  that  the  tenant  is  not  relieved  from  further  performance 
of  the  contract  where  the  lease  of  the  property  is  not  for  saloon 
purposes  only.*^ 

Legal  impossibility  may  arise  as  well  by  action  of  the  courts 
or  by  the  executive  as  of  the  legislature,  and  in  all  such  cases  the 
contract  is  discharged.  Thus,  where  an  agent  was  under  em- 
ployment by  an  insurance  company,  and  before  expiration  of 
the  term  the  company  was  enjoined  from  doing  business,  and  a 
receiver  was  appointed,  at  the  instance  of  the  state,  the  contract 
was  discharged.®'  So,  where  a  servant  agreed  with  his  master  that 
if  he  left  without  giving  two  weeks'  notice  he  should  receive  noth- 
ing for  wages  due,  and  was  arrested  and  imprisoned  for  crime, 
it  was  held  that  he  could  nevertheless  recover.®*     And  where  per- 

80  Heart  v.  East  Tennessee  Brewing  Co.,  121  Tenn.  69,  113  S.  W.  364,  19 
L.  R.  A.  (N.  S.)  964,  130  Am.  St.  Rep.  753.  See  "Landlord  and  Tenant,"  Dec. 
Dig.  (Key-No.)  §§  29,  34;  Cent.  Dig.  §§  85,  97;  "Contracts,"  Cent.  Dig.  §§  465, 
513^2!  "Intoxicating  Liquors,"  Cent.  Dig.  §  ^73. 

81  Houston  Ice  &  Brewing  Co.  v.  Keenan,  99  Tex.  79,  88  S.  W.  197 ;  J.  J. 
Goodrum  Tobacco  Co.  v.  Potts-Thompson  Liquor  Co.,  133  Ga.  776,  66  S.  B. 
1081,  26  Ix  R.  A.  (N.  S.)  498;  O'Byrne  v.  Henley,  161  Ala.  620,  50  South.  83, 
23  L.  R.  A.  (N.  S.)  496.  See  "Landlord  and  Tenant,"  Dec.  Dig.  (Key-No.)  §§ 
29,  S4;   Cent.  Dig.  §§  85,  97. 

82  Lawrence  v.  White,  131  Ga.  840,  63  S.  E.  631,  19  L.  R.  A.  (N.  S.)  966,  15 
Ann.  Cas.  1097;  San  Antonio  Brewing  Ass'n  v.  Brents,  39  Tex.  Civ.  App. 
443,  88  S.  W.  368;  Kerley  v.  Mayer,  10  Misc.  Rep.  718,  31  N.  Y.  Supp.  818 
[affirmed,  155  N.  Y.  636,  49  N.  E.  1099] ;  Miller  v.  Maguire,  18  R.  I.  770,  30 
Atl.  966 ;  Barghman  v.  Portman  (Ky.)  14  S.  W.  342 ;  Hecht  v.  Acme  Coal  Co., 
19  Wyo.  18,  113  Pac.  788,  117  Pac.  132,  34  L.  R.  A.  (N.  S.)  773,  777,  Ann.  Cas. 
1913E,  258;  Shreveport  Ice  &  Brewing  Co.  v.  Mandel  Bros.,  128  La.  314,  54 
South.  831.  See  "Landlord  and  Tenant,"  Dec.  Dig.  (Key-No.)  §§  29,  34;  Cent. 
Dig.  §§  85,  97. 

83  People  V.  Insurance  Co.,  91  N.  Y.  174.  To  the  same  effect,  where  per- 
formance is  prevented  by  appointment  of  receiver  and  injunction.  Malcom- 
son  v.  Wappoo  Mills  (C.  C.)  88  Fed.  680;  Burkhardt  v.  School  Tp.,  9  S.  D. 
315,  69  N.  W.  16.  Contra,  Spader  v.  Manufacturing  Co.,  47  N.  J.  Eq.  18,  20 
Atl.  378 ;  State  v.  Railroad  Co.,  61  Neb.  545,  85  N.  W.  556.  See  "Contracts," 
Dec.  Dig.  (Key-No.)  §  303;    Cent.  Dig.  §§  1409-1443. 

«*  Hughes  V.  Wamsutta  Mills,  11  Allen   (Mass.)  201.     But  see  Leopold  v. 


§    254)  BY    IMPOSSIBILITY   OF   PERFORMANCE  595 

formance  of  a  charter  party  for  loading  a  cargo  at  a  foreign  port 
was  prevented  by  a  declaration  of  war  rendering  performance 
impossible  without  illegal  trading  with  the  enemy,  the  contract 
was  discharged.®'* 

Same — Destruction  of  the  Subject-Matter 

Where  the  continued  existence  of  a  specific  thing  is  essential 
to  the  performance  of  the  contract,  its  destruction  from  no  fault 
of  either  party  operates  as  a  discharge.*^  A  leading  case  on  this 
subject  was  one  in  which  the  defendant  had  agreed  to  let  the 
plaintiff  have  the  use  of  a  music  hall  for  the  purpose  of  giving 
concerts  upon  certain  days.  Before  the  days  of  performance  ar- 
rived the  hall  was  destroyed  by  fire,  and  the  plaintiff  sued  the 
defendant  for  losses  arising  from  the  consequent  breach  of  con- 
tract. The  court  held  that,  in  the  absence  of  any  express  stipula- 
tion on  the  matter,  the  parties  must  be  taken  "to  have  contem- 
plated the  continuing  existence  as  the  foundation  of  what  was  to 
be  done,"  and  that,  therefore,  "in  the  absence  of  any  expressed 
or  implied  warranty  that  the  thing  shall  exist,  the  contract  is  not 
to  be  construed  as  a  positive  contract,  but  as  subject  to  an  implied 
condition  that  the  parties  shall  be  excused  in  case,  before  breach, 
performance  becomes  impossible  from  the  perishing  of  the  thing 

Salkey,  89  111.  412,  31  Am,  Rep.  93.  See  "Contracts,"  Dec.  Dig.  {Key-'So.)  § 
IS;    Cent.  Dig.  §  97. 

8  5  Esposits  V.  Bowden,  7  El.  &  Bl.  763.  See  "Contracts,"  Dee.  Dig.  {Key- 
Xo.)  §  303;   Cent.  Dig.  §§  H00-1U3. 

88  Taylor  v.  Caldwell,  3  Best  &  S.  826;  Lord  v.  Wheeler,  1  Gray  (Mass.) 
282 ;  Walker  v.  Tucker,  70  111.  527 ;  The  Tornado,  108  U.  S.  342,  2  Sup.  Ct. 
746,  27  L.  Ed.  747 ;  Ward  v.  Vance,  93  Pa.  499.  Cf.  Nicol  v.  Fitch,  115  Mich. 
15,  72  N.  W.  988,  69  Am.  St.  Rep.  542.  Most  courts  hold  that,  where  a  per- 
son has  agreed  to  make  repairs  or  do  other  work  on  a  specific  building  or 
chattel,  its  destruction  before  the  work  is  finished  will  discharge  the  contract, 
and  the  workman  may  recover  for  what  he  has  done,  and  it  Is  immaterial 
that  the  work  was  only  to  be  paid  for  on  completion.  See  Whelan  v.  Clock 
Co.,  97  N,  Y.  293 ;  Hlndrey  v.  Williams,  9  Colo.  371,  12  Pac.  436 ;  Butterfield 
V.  Byron,  153  Mass.  517,  27  N.  E.  667,  12  L.  R.  A.  571,  25  Am.  St  Rep.  654; 
Cleary  v.  Sohier,  120  Mass.  210;  Cook  v.  McCabe,  53  Wis.  250,  10  N.  W.  507, 
40  Am.  Rep.  765;  Lord  v.  Wheeler,  1  Gray  (Mass.)  282;  Wells  v.  Calnan,  107 
Mass.  514,  9  Am.  Rep.  05;  Haynes  v.  Baptist  Church,  88  Mo.  285,  57  Am. 
Rep.  413 ;  Weis  v.  Devlin,  67  Tex.  507,  3  S.  W.  726,  60  Am.  Rep.  3S ;  Ilysell 
V.  Manufacturing  Co.,  46  W.  Va.  158,  33  S.  E.  95;  Angus  v.  Scully,  176  Mass. 
357,  57  N.  E.  674,  49  L.  R.  A.  562,  79  Am.  St.  Rep.  318;  Hayes  v.  Gross,  9 
App.  Div.  12,  40  N.  Y.  Supp.  1098,  aOirmed,  162  N.  Y,  610,  57  N.  E.  1112.  But 
see  Appleby  v.  Myers,  L.  R.  2  C.  P.  651 ;  Brumby  v.  Smith,  3  Ala.  123 ;  Sio- 
gel.  Cooper  &  Co.  v.  Eaton  &  Prince  Co.,  165  111.  550,  46  N.  E.  449;  Iluyett  A 
Smith  Mfg.  Co.  v.  Chlcajio  Edison  Co.,  167  111.  233,  47  N.  E.  384,  59  Am.  St. 
Rep.  272,  See  "Contracts,"  Dec.  Dig.  {Key-Xo.)  §  309;  Cent.  Dig.  §§  l^U- 
1J,J,6. 


596  DISCHARGE    OF    CONTRACT  (Ch.  11 

without  default  of  the  contractor."  "^  Accordingly,  where  the 
contract  is  for  the  sale  of  specific  goods,  which  perish  without 
the  seller's  fault  before  the  day  appointed  for  delivery,  the  seller 
is  excused  from  his  obligation  to  deliver,  and  the  buyer  from 
his  obligation  to  pay.®*  And  a  contract,  letting  space  in  a  depart- 
ment store  is  discharged  by  the  destruction  of  the  building  in 
which  the  store  is  conducted.*® 

Same — Incapacity  for  Personal  Services 

A  contract  which  has  for  its  object  the  rendering  of  personal  serv- 
ices is  discharged  by  the  death  or  incapacitating  illness  of  the 
promisor. ""     In  an  action  for  damage  sustained  by  a  breach  of 

8  7  Taylor  v.  Caldwell,  3  Best  &  S.  826.  See  ''Contracts,"  Dec.  Dig.  {Key- 
No.)  §  309;    Cent.  Dig.  §§  UfU-iW. 

8  8Rugg  V.  Minett,  11  East,  210;  Howell  v.  Coupland,  1  Q.  B.  Div.  258; 
Dexter  v.  Norton,  47  N.  Y.  62,  7  Am.  Rep.  415 ;  Thompson  v.  Gould,  20  Pick. 
(Mass.)  134,  139;  WeUs  v.  Calnan,  107  Mass.  514,  9  Am.  Rep.  65;  Gould  v. 
Murch,  70  Me.  288,  35  Am.  Rep.  325 ;  McMillan  v.  Fox,  90  Wis.  173,  62  N.  W. 
1052.  So  where  goods  are  to  be  manufactured  in  particular  factory,  which 
is  destroyed.  Stewart  v.  Stone,  127  N.  Y.  500,  28  N.  E.  595,  14  L.  R.  A.  215. 
Or  a  crop  is  to  be  grown  on  a  particular  piece  of  land,  and  the  crop  fails. 
Howell  V.  Coupland,  1  Q.  B.  Div.  258.  Otherwise  where  no  particular  land 
is  specified.  ANDERSON  v.  MAY,  50  Minn.  280,  52  N.  W.  530,  17  L.  R.  A. 
555,  36  Am.  St.  Rep.  642,  Throckmorton  Cas.  Contracts,  404.  See  "Sales,"  Dec. 
Dig.  (Key-No.)  §  172;    Cent.  Dig.  §§  J,25-JfS0. 

89  Martin  Emerich  Outfitting  Co.  v.  Siegel,  Cooper  &  Co.,  237  111.  610,  86  N. 
E.  1104,  20  L.  R.  A.  (N.  S.)  1114  [affirming  141  111.  App.  147],  holding  that 
the  lessee  is  not  entitled  to  space  in  another  building  Ib  which  the  lessor  had 
obtained  a  new  location.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  309;  Cent. 
Dig.  §§  UU-iW. 

9  0  Boast  V.  Firth,  L.  R.  4  C.  P.  1 ;  Underwood  v.  Lewis  [1894]  2  Q.  B.  306; 
Spalding  v.  Rosa,  71  N.  Y.  40,  27  Am.  Rep.  7;  Jennings  v.  Lyons,  39  Wis. 
553,  20  Am.  Rep.  57;  Lakeman  v.  Pollard,  43  Ma  463,  69  Am.  Dec.  77; 
Shultz  V.  Johnson's  Adm'r,  5  B.  Mon.  (Ky.)  497;  Harrington  v.  Iron-Works 
Co.,  119  Mass.  82;  Fuller  v.  Brown,  11  Mete.  (Mass.)  440;  Scully  v.  Kirk- 
patrick,  79  Pa.  324,  21  Am.  Rep.  62;  Allen  v.  Baker,  86  N.  C.  91,  41  Am. 
Rep.  444 ;  Hubbard  v.  Belden,  27  Vt  645 ;  Marvel  v.  Phillips,  162  Mass.  399, 
38  N.  E.  1117,  26  L.  R.  A.  416,  44  Am.  St.  Rep.  370 ;  Smith  v.  Preston's  Es- 
tate, 170  111.  179,  48  N.  E.  €88 ;  Blakely  v.  Sousa,  197  Pa.  305,  47  Atl.  286,  80 
Am.  St.  Rep.  821 ;  Walsh  v.  Fisher,  102  Wis.  172,  78  N.  W.  437,  43  L.  R.  A. 
810,  72  Am.  St.  Rep.  865  (violence  of  strikers) ;  Dow  v.  Bank,  88  Minn.  355, 
93  N.  W.  121.  So  the  death  of  the  employer  discharges  the  employ 6  from 
performance,  Farrow  v.  Wilson,  L.  R.  4  C.  P.  589;  Yerrington  v.  Greene,  7 
R.  I.  589,  84  Am.  Dec.  578,  but  not  necessarily  the  death  of  one  of  two  joint 
employers.  Martin  v.  Hunt,  1  Allen  (Mass.)  419;  Hughes  v.  Gross,  166  Mass. 
61,  43  N.  E.  1031,  32  L.  R.  A.  620,  55  Am.  St.  Rep.  375.  But  the  death  of  one 
member  of  a  law  firm  which  has  contracted  to  conduct  a  case  terminates  the 
contract,  the  employment  being  personal.  Wright  v.  McCampbell,  75  Tex. 
644,  13  S.  W.  293 ;  Landa  v.  Shook,  87  Tex.  608,  30  S.  W.  536 ;  Baxter  v. 
Billings,  83  Fed.  790,  28  C.  a  A.  85.    See,  also,  Hartford  Fire  Ins.  Co.  v.  Wil- 


§    254)  BY    IMPOSSIBILITY    OF   PERFORMANCB  597 

contract  on  the  part  of  a  musician,  who,  having  promised  to 
perform  at  a  concert,  was  prevented  from  doing  so  by  a  danger- 
ous illness,  the  law  governing  the  case  was  thus  stated :  "This 
is  a  contract  to  perform  a  service  which  no  deputy  could  per- 
form, and  which,  in  case  of  death,  could  not  be  performed  by  the 
executors  of  the  deceased ;  and  I  am  of  opinion  that  by  virtue  of 
the  terms  of  the  original  bargain  incapacity  of  body  or  mind  in 
the  performer,  without  default  on  his  or  her  part,  is  an  excuse  for 
nonperformance.  Of  course  the  parties  might  expressly  contract 
that  incapacity  should  not  excuse,  and  thus  preclude  the  condition 
of  health  from  being  annexed  to  their  agreement.  Here  they 
have  not  done  so,  and,  as  they  have  been  silent  on  that  point,  the 
contract  must,  in  my  judgment,  be  taken  to  have  been  conditional, 
and  not  absolute."  ®^ 

On  the  same  principle  it  has  been  held  that  where,  from  the 
prevalence  of  a  contagious  and  fatal  disease  in  the  vicinity  of  the 
place  where  one  has  contracted  to  labor  for  a  specified  time,  the 
danger  is  such  as  to  render  it  unsafe  and  unreasonable  for  men 
of  ordinary  care  and  common  prudence  to  remain  there,  it  is 
a  sufficient  cause  for  not  fulfilling  the  contract.*^  The  rule  that 
the  death  of  a  person  discharges  his  contract  to  render  personal 
services  has  been  held  not  to  apply  where  the  services  are  of  such 
a  character  that  they  may  be  just  as  well  performed  by  his  per- 
sonal representative.®*  Where  performance  is  thus  rendered  im- 
possible by  death  or  incapacity,  the  contractor  or  his  personal 
representative  may  recover  upon  a  quantum  meruit,  subject  to 
the  right  of  the  defendant  to  have  the  recovery  reduced  by  the 
amount  of  any  loss  which  he  may  have  suffered  from  nonperform- 
ance of  the  contract."*     So  the  unearned  portion  of  a  consideration 

cox,  57  111.  180;  Salisbury  v.  Brisbane,  61  N.  Y.  617;  Martine  v.  Insurance 
Soc,  n3  N.  Y.  3.39,  Vi  Am.  Rep.  529.  See  "Master  and  Servant,"  Dec.  Dig. 
{Key-'S^o.)  §  27;   Cent.  Dig.  §  27. 

81  Robinson  v.  Davison,  L.  R.  6  Exch.  269.  See  "Master  and  Servant,"  Dec. 
Dig.  (Key-No.)  §  27;    Cent.  Dig.  §  27. 

82  Lakeman  v.  Pollard,  43  Me.  463,  69  Am,  Dec.  77.  But  see  Dewey  v. 
School  Dist.,  43  Mich.  480,  5  N.  W.  646,  38  Am.  Rep.  206.  See  "Contracts:' 
Dec.  Dig.  (Key-No.)  §  319;  Cent.  Dig.  §  ]Ji96;  "ScJiools  and  School  Districts," 
Dec.  Dig.  (Key-No.)  §  144;   Cent.  Dig.  §  S09. 

63  Hawkins  v.  Ball's  Adm'r,  18  B.  Mon.  (Ky.)  816,  68  Am.  Dec.  75^;  Silor 
T.  Gray,  m  N.  C.  566;  Janin  v.  Browne.  59  Cal.  37;  BILLINGS'  APPEAI., 
306  Pa.  558,  Throckmorton  Gas.  Contracts,  3.30;  Howe  Sewing  Mach.  Co.  v. 
Rosensteel  (C.  C.)  24  Fed.  583;  Shultz  v.  Johnson's  Adni'r,  5  B.  Mon.  (Ky.) 
497;  Volk  v.  Stowell,  98  Wis.  385,  74  N.  W.  118.  And  see  generally  for  as- 
signment of  contractual  obligations  by  death,  ante  p.  473.  See  "^rastrr  and 
i^crvant,"  Dec.  Dig.  (Key-No.)  §  28;    Cent.  Dig.  §  27. 

•«  Patrick  v.  Putnam,  27  Vt.  759;    Wolfe  v.   Howes.  20  N.   Y.  197,   75   Am. 


598  DISCHARGE    OF    CONTRACT  (Ch.  11 

paid  in  advance  for  services  the  performance  of  v^hich  is  prevented 
by  the  death  or  incapacitating  illness  of  the  promisor  may  be 
recovered  from  him  or  his  estate. ^° 

Same — Where  Conditions  Essential  to  Performance  Do  Not  Exist 

A  fourth  exception  recognized  in  some  cases  is  that  perform- 
ance of  a  contract  v^ill  be  excused  where  conditions  essential  to 
performance  do  not  exist.*®  An  illustration  of  this  exception  is 
found  in  a  recent  well-considered  case  in  the  New  York  Court  of 
Claims,®^  in  which  it  is  said :  "Where  in  the  course  of  the  -con- 
struction of  a  canal  natural  conditions  of  soil  unexpectedly  ap- 
pear, which  contingency  the  contract  does  not  in  express  terms 
cover,  and  which  render  the  performance  of  the  contract  as 
planned  impossible,  and  make  necessary  substantial  changes  in  the 
nature  and  cost  of  the  contract,  and  substantially  affect  the  work 
remaining  under  the  contract,  the  law  will  read  into  the  contract 
an  implied  condition  when  it  was  made  that  such  a  contingency 
will  terminate  the  entire  contract."  This  exception  has  not  been 
recognized  in  the  majority  of  jurisdictions,  but  the  tendency  of 
the  courts  is  to  be  more  liberal  than  formerly  in  relieving  a  party 
from  his  obligation  under  a  contract  where  performance  has  been 
rendered  impossible  without  fault  on  his  part.** 

Same — Performance  Prevented  by  the  Promisee 

If  performance  of  a  promise  is  prevented  by  the  promisee,  there 
is  no  breach  of  contract  by  the  promisor."* 

Dec.  3S8;  Lakeman  v.  Pollard,  43  Me.  463,  G9  Am.  Dee.  77;  Green  v.  Gilbert, 
21  Wis.  395 ;  Parker  v.  Macoinber.  17  R.  I.  674,  24  Atl.  464,  16  L.  R.  A.  8uS. 
The  right  to  recover  except  on  full  performance  may  be  excluded  by  the  ex- 
press terms  of  the  contract.  Cutter  v.  Powell,  6  Term  R.  320.  See  "Master 
and  Servant:'  Dec.  Dig.  {Key-yo.)  §  2S;    Cent.  Dig.  §  27. 

95  Mendenhall  v.  Davis,  52  Wash.  169,  100  Pac.  336,  21  L.  R.  A.  (X.  S.)  914, 
17  Ann.  Cas.  179.  -See  ''Contracts:'  Dec.  Dig.  {Kei/-^'o.)  §  Sll;  Cent.  Dig.  §^ 
14.',8-1^56;    "Master  and  Servant:'  Dec.  Dig.  (Eeu-yo.)  §  28;   Cent.  Dig.  §  27. 

9  6  Buffalo,  etc.,  Land  Co.  v.  Bellevue  Land,  etc.,  Co.,  16.5  N.  T.  247,  59  N. 
E.  5,  51  L.  R.  A.  951;  Kinzer  Construction  Co.  v.  State  (Ct.  CI.)  125  N.  Y. 
Supp.  46 ;  Article  by  Frederick  C.  Woodward,  1  Col.  Law  Rev.  529 ;  15  Harv. 
Law  Rev.  63,  418.  And  see  Stewart  v.  Stone,  127  N.  T.  500,  28  N.  E.  595,  14 
L.  R.  A.  215.  See  ''Contracts:'  Dec.  Dig.  (Key-No.)  §  800;  Cent.  Dig.  §J 
lUJ,-14-'i6. 

9T  Kinzer  Construction  Co.  v.  State  (Ct.  CI.)  125  N.  T.  Supp.  46.  See  "Corv- 
tracts:'  Dec.  Dig.  {Kei/-yo.)  §  S09 ;   Cent.  Dig.  §§  UU-l^S. 

9  8  See  authorities  cited  supra,  note  96. 

99  Black  V.  Woodrow,  39  Md.  194  ;  Smith  r.  Alker,  102  X.  Y.  87.  5  X.  E. 
791;  ante,  p.  586.  See  "Contracts:'  Dec.  Dig.  {Key-No.)  §§  SOO,  SOS;  Cent.. 
Dig.  §§  1S7J,,  IJiSO-lJtSS. 


§   256)  BY   OPERATION   OF  LAW  599 


DISCHARGE  BY  OPERATION  OF  LAW 

255.  There  are  rules  of  law  which,  operating  upon  certain  sets  of 
circumstances,  will  bring  about  the  discharge  of  a  con- 
tract; as  in  case  of 

(a)  Merger. 

(b)  Alteration  of  a  written  instrument. 

(c)  Proceedings  in  bankruptcy. 


SAME— MERGER 

256.  Acceptance  of  a  higher  security  in  the  place  of  a  lower  merges 
or  extinguishes  the  lower,  but 

(a)  The  two  securities  must  be  different  in  their  legal  operation, 

the  one  of  a  higher  efficacy  than  the  other.  • 

(b)  The  subject-matter  of  the  two  securities  must  be  identical. 

(c)  The  parties  must  be  the  same. 

The  merger  of  a  lower  in  a  higher  security  does  not  depend  on  the 
intention  of  the  parties.  The  mere  acceptance  of  the  higher  security 
ipso  facto  extinguishes  the  lower.^  We  shall  presently  see  an  in- 
stance of  this  form  of  discharge  in  the  case  of  a  judgment  recovered 
in  an  action  for  breach  of  contract.  The  judgment  extinguishes  by 
merger  the  right  of  action  arising  from  the  breach.  In  like  manner, 
if  the  parties  to  a  simple  contract  embody  its  contents  in  a  deed  which 
they  both  execute,  the  simple  contract  is  discharged.*  In  order  to 
effect  a  merger,  the  two  securities  must  be  different  in  their  legal 
operation,  the  one  of  a  higher  efficacy  than  the  other.  A  second  se- 
curity, taken  in  addition  to  one  similar  in  character,  will  not  affect  its 
validity  unless  there  be  a  discharge  by  substituted  agreement.^     It  is 

1  Price  V.  Moulton,  10  C.  B.  561 ;  Jones  v.  Johnson,  3  Watts  &  S.  (Pa.) 
276,  38  Am.  Dec.  700;  Moale  v.  Hollins,  11  Gill  &  J.  (Md.)  11,  38  Am.  Dec. 
684:  Keefer  v.  Zimmerman,  22  Md.  274;  Wann  v.  McNulty,  2  Gilinan  (111.) 
o55,  43  Am.  Dec.  5S;  ante,  p.  71.  See  "Contracts,"  Dec.  Dig.  (Kcy-Xo.)  § 
2^5;   Cent.  Dig.  §§  112D,  IISO. 

2  Martin  v.  Hamlin,  IS  Mich.  3.o4,  100  Am.  Dec.  181;  Howes  v.  P.arker,  3 
.Johns.  (N.  Y.)  50G,  3  Am.  Dec.  526;  CLIFTON  v.  JACKSON  IRON  CO.,  74 
Mich.  1S3,  41  N.  W.  891,  10  Am.  St.  Rop.  021,  Throckmorton  Cas.  Contracts, 
400;  Williamson  v.  Cline,  40  W.  Va.  194,  20  S.  E.  917.  If,  however,  the  deed 
is  accepted  by  the  vendee,  not  as  in  full  performance,  but  only  as  perform 
ance  pro  tanto  of  the  contract  of  sale,  it  does  not  discharge  the  contract. 
Read  v.  Loftus,  82  Kan.  485,  108  Pac.  8.^)0,  31  L.  R.  A.  (N.  S.)  4.'^7,  and  note, 
."^ee  "Contracts,"  Dec.  Dig.  (Key-No.)  §  2.'i5;   Cent.  Dig.  ?§  ll'^i),  IISO. 

8  Higgen's  Case,   6  Coke,  4.jb;    Andrews  v.    Smitb,   9   Wend.    (N.   T.)   53; 


600  DISCHARGE    OF    CONTRACT  (Ch.  11 

also  necessary  that  the  subject-matter  of  the  two  securities  shall  be 
identical,*  and  that  the  parties  shall  be  the  same."*  Even  a  security 
of  a  higher  nature,  if  it  is  taken  expressly  as  a  collateral  security,  will 
not  extinguish  the  inferior.® 

It  is  often  said  that  where  a  simple  oral  contract  is  reduced  to  writ- 
ing the  written  contract  merges  the  oral  agreement,  but  the  term 
"merger"  is  thus  used  in  a  different  sense.  A  simple  contract  in  writ- 
ing is  of  no  higher  nature  than  a  simple  contract  by  word  of  mouth. 
What  is  meant  is  simply  that  where  the  parties  have  reduced  their 
contract  to  writing  they  cannot  vary  or  add  to  it  by  parol  evidence. 
It  is  simply  a  question  of  evidence.'^  Again,  one  simple  contract  may 
be  substituted  for  another.  In  such  case,  however,  there  is  no  dis- 
charge by  operation  of  law,  but  the  substitution  depends  upon  the 
intention  of  the  parties.' 


SAME— ALTERATION  OF  A  WRITTEN  INSTRUMENT 

257.  If  a  deed  or  contract  in  writing  is  altered  by  addition  or  era- 
sure, it  is  discharged,  provided  the  alteration  is  made — 

(a)  In  a  material  part,  so  that  it  changes  the  legal  effect  of  the 

instrument.     It  need  not  necessarily  be  prejudicial. 

(b)  By  a  party  to  the  contract,  or  by  a  stranger  with  his  consent. 

(c)  Intentionally. 

(d)  Without  the  consent  of  the  other  party. 

The  alteration  of  a  deed,  or  of  a  simple  contract  in  writing,  if 
made  under  the  circumstances  stated  above,  will  operate  as  a  dis- 
charge of  the  contract,  the  law  imposing  this  severe  penalty  as  a  safe- 
guard against  tampering  with  written  instruments.®     The  alteration, 

Gregory  v.  Thomas,  20  Wend.  (N.  Y.)  17;  Bill  v.  Porter,  9  Conn.  23;  ante, 
I>p.  71.  54G;  See  ''Contracts;'  Dec.  Dig.  (Kcij-.\o.)  §  2-^5;  Cent.  Dig.  §§  1129, 
IISO. 

*  Holmes  •v.  Bell,  3  Man.  &  G.  213 ;  Witbeck  v.  Waine.  16  N.  Y.  532.  See 
"Contracts,"  Dec.  Dig.  {Kep-No.)  §  245;   Cent.  Dig.  §§  1129,  1130. 

B  Hooper's  Case,  2  Leon.  110 ;  Banorgee  v.  Hovey,  5  Mass.  11,  4  Am.  Deo. 
17;  Doty  v.  Martin,  32  Mich.  462.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  § 
2f,5;   Cent.  Dig.  §§  1129,  1130. 

6  Day  V.  Leal,  14  Johns.  (N.  Y.)  404;  Butler  v.  Miller,  1  Denio  (N,  Y.) 
407.  And  see  the  cases  cited  in  the  preceding  note ;  ante,  p.  71,  note  50. 
S^e  "Contracts."  Dec.  Dig.  (Key-No.)  §  2^5;    Cent.  Dig.  §§  1129,  1130. 

■'  Ante,  p.  490. 

8  9  Cyc.  Law  &  Proc.  635 ;  ante,  p.  71. 

9  Suffell  V.  Bank,  9  Q.  B.  Div.  555 ;  WOOD  v.  STEELE,  6  Wall.  80,  18  L. 
Ed.  725,  Throckmorton  Cas.  Contracts,  407 ;  Angle  v.  Insurance  Co.,  92  U.  S. 
330,  23  L.  Ed.  556 ;    Mersman  v.  Werges,  112  U.  S.  139,  5  Sup.  Ct  65,  28  I*  Ed 


§    257)  BY    OPERATION    OF   LAW  601 

to  have  this  effect,  must  be  material ;  that  is,  it  must  change  the  legal 
effect  of  the  instrument.^"  Whether  it  is  material  or  not  must,  of 
course,  depend  upon  the  character  of  the  instrument.  Adding  words 
of  negotiability  to  a  note  or  changing  or  cutting  from  a  note  a  memo- 
randum limiting  its  effect  as  a  negotiable  instrument  or  otherwise,^  ^ 
or  in  any  way  altering  it  so  as  to  destroy  or  change  its  negotiability;  ^^ 

641;  Osgood  v.  Stevenson,  143  Mass.  399,  9  N.  E.  825;  McGrath  v.  Clark,  56 
N.  Y.  34,  15  Am.  Rep.  372 ;  Draper  v.  Wood,  112  Mass.  315,  17  Am.  Rep.  92 ; 
NeflP  V.  Horner,  63  Pa.  327,  3  Am.  Rep.  555 ;  Kilkelly  v.  Martin,  34  Wis.  525 ; 
Montag  V.  Linn,  23  111.  551;  Nicholson  v.  Combs,  90  Ind.  515,  46  Am.  Rep. 
229;  Holmes  v.  Trumper,  22  Mich.  427,  7  Am.  Rep.  GGl ;  Marsh  v.  Griffin,  42 
Iowa,  403 ;  iEtna  Nat  Bank  v.  Winchester,  43  Conn.  391 ;  Morrison  v.  Garth, 
78  Mo.  434 ;  Johnson  v.  Moore,  33  Kan.  90,  5  Pac.  406.  Alteration  nullifies  a 
negotiable  instrument  even  against  a  bona  fide  purchaser.  Master  v.  Miller, 
4  T.  R.  320 ;  Burchfield  v.  Moore,  3  El.  &  Bl.  683 ;  Wait  v.  Pomeroy,  20  Mich. 
425,  4  Am.  Rep.  395 ;  Citizens'  Nat.  Bank  v.  Richmond,  121  Mass.  110 ;  Horn 
V.  Bank,  32  Kan.  518,  4  Pac.  1022;  Gettysburg  Nat.  Bank  v.  Chisholm,  169 
Pa.  564,  32  Atl.  730,  47  Am.  St.  Rep.  929 ;  Exchange  Nat.  Bank  v.  Bank,  58 
Fed.  140,  7  C.  C.  A.  Ill,  22  L.  R.  A.  686 ;  Seebolt  v.  Tatlie,  76  Minn.  131,  78 
N.  W.  967.  This  rule  has  been  modified  in  many  states  by  the  Negotiable  In- 
struments Law,  so  as  to  enable  a  holder  in  due  course  to  enforce  the  instru- 
ment against  a  party  making,  authorizing,  or  assenting  to  the  alteration  and 
subsequent  indorsers.  Norton,  Bills  &  N.  (.3d  Ed.)  246.  See  "Alteration  of 
Instruments;'  Dec.  Dig.  (Key-No.)  §§  16-18;   Cent.  Dig.  §§  11^-145. 

10  Fuller  v.  Green,  64  Wis.  159,  24  N.  W.  907,  54  Am.  Rep.  600  (collecting 
cases)  ;  Burlingame  v.  Brewster,  79  111.  515,  22  Am.  Rep.  177 ;  Birdsall  v. 
Rus.sell,  29  N.  T.  220;  Manufacturers'  Bank  v.  Follett,  11  R.  I.  92,  23  Am. 
Rep.  418 ;  Wessell  v.  Glenn,  108  Pa.  104 ;  Miller  v.  Reed,  27  Pa.  244,  07  Am. 
Dec.  459 ;  Palmer  v,  Largent,  5  Neb.  223.  25  Am.  Rep.  479 ;  Leonard  v.  Phil- 
lips, 39  Mich.  182,  33  Am.  Rep.  370.  Filling  blanks  with  name  of  party,  or 
more  specific' description  of  property,  will  not  avoid  contract,  since  it  does 
not  change  legal  effect.  Briscoe  v.  Reynolds,  51  Iowa,  673,  2  N.  W.  529 ;  Row- 
ley V.  Jewett,  56  Iowa,  492,  9  N.  W.  353.  Figures  in-  margin  being  no  part 
of  the  note,  their  alteration  is  immaterial.  Johnston  Harvester  Co.  v.  Mc- 
Lean, 57  Wis.  2.58,  15  N.  W.  177,  46  Am.  Rep.  39.  It  has  been  held  in  Eng- 
Innd  that,  though  in  a  bank  note  the  promise  to  pay  made  by  the  bank  is  not 
touched  by  an  alteration  in  the  number  of  the  note,  the  fact  that  a  bank  note 
is  a  part  of  the  currency,  and  that  the  number  placed  on  it  is  put  to  important 
uses  by  the  bank  and  by  the  public  for  the  detection  of  forgery  and  theft, 
causes  an  alteration  in  the  number  to  be  material,  and  to  invalidate  the  note. 
Suffell  V.  Bank,  9  Q.  B.  Div.  5.55.  Contra,  as  to  bonds.  Birdsall  v.  Russell, 
29  N.  Y.  220;  City  of  Elizabeth  v.  Force,  29  N.  J.  Eq.  587.  -See  ''Alteration  of 
Instruments"  Dec.  Dig.  {Key-No.)  §  2;    Cent.  Dig.  §§  l-J/. 

11  Benedict  v.  Cowden,  49  N.  Y.  396,  10  Am.  Rep.  382;  Walt  v.  Pomeroy, 
20  Mich.  425,  4  Am.  Rep.  395;  Gerrlsh  v.  Glines,  56  N.  H.  9;  Johnson  v. 
Heagan,  23  Me.  329;  Wheelock  v.  Freeman,  13  Pick.  (Mass.)  165,  23  ^Vni. 
Dec.  674 ;  Cochran  v.  Nebeker,  48  Ind.  459 ;  Davis  v.  Henry,  13  Neb.  497,  14 
N.  W.  .523;  Stephens  v.  Davis,  85  Tenn.  271,  2  S.  W.  382.  See  "Alteration  of 
Instruments,"  Dec.  Dig.  (Key-No.)  §  5;    Cent.  Dig.  §§  18-29. 

12  Booth  V.  Powers,  56  N.  Y.  22;  Union  Nat.  Bank  v.  Roberts,  45  Wis.  373; 
Needles  v.  Shaffer,  60  Iowa,  65,  14  N.  W.  129;    Belknap  v.   Bank,  100   M.is-, 


602  DISCHARGE    OF    CONTRACT  (Ch.  11 

altering  an  instrument  by  erasing,  crossing  out,  or  otherwise  canceling 
a  material  part  thereof,  without  the  substitution  of  new  matter;^* 
under  some  circumstances,  adding  a  seal  to  an  instrument,  or  effacing 
a  seal/*  changing  the  date  of  a  note  or  other  security,^ °  or  the  time 
of  payment,^*  or  the  place  of  payment/'^  or  the  amount  to  be  paid, 
either  by  lessening  or  increasing  the  principal,^®  or  by  changing  the 
rate  of  interest,  or  adding  a  provision  for  interest;^®  adding  to  or 
withdrawing  from  an  instrument  the  name  of  a  maker,  drawer,  or, 
according  to  some  of  the  cases,  a  surety,  after  the  instrument  has  been 
executed  ^° — are  all  material  alterations.     But  "an  alteration   which 

376,  97  Am.  Dec.  105.  See  "Alteration  of  Instruments,"  Dec.  Dig.  (Key-No.) 
§  5;    Cent.  Dig.  §§  18-29. 

IS  O.  N.  Bull  Remedy  Co.  v.  Clark,  109  Minn.  396,  124  N.  W.  20,  32  L.  R. 
A.  (N.  S.)  519,  18  Ann.  Cas.  413.  See  "Alteration  of  Instruments,"  Dec.  Dig. 
(Ecy-No.)  §  5;  Cent.  Dig.  §§  18-29. 

14  Davidson  v.  Cooper,  11  Sfees.  &  W.  778,  13  Mees.  &  W.  343 ;  Rawson  v. 
Davidson.  49  Mich.  607,  14  N.  W.  505.  Under  some  circumstances  and  In 
some  jurisdictions,  the  seal  may  make  no  difference.  Truett  v.  Wainwright, 
4  Oilman  (111.)  411;  White  v.  Fox,  29  Conn.  570.  See  "Alteration  of  Instru- 
ments" Dec.  Dig.   (Keij-No.)  §  8;   Cent.  Dig.  §  Ji^. 

15  WOOD  V.  STEELE,  6  Wall.  80,  18  L.  Ed.  725,  Throckmorton  Cas.  Con- 
tracts, 407 ;  Vance  v.  Lowther,  1  Exch.  Div.  170 ;  Walton  v.  Hastings,  4 
Camp.  223 ;  Outhv^aite  v.  Luntley,  Id.  179 ;  Hamilton  v.  Wood,  70  Ind.  306 ; 
Britton  v.  Dierker,  46  Mo.  591,  2  Am.  Rep.  553;  Crawford  v.  Bank,  100  N. 
Y.  50,  2  N.  E.  8S1,  53  Am.  Rep.  152;  Miller  v.  Gilleland,  19  Pa.  119.  See  "AU 
teration  of  Instruments,"  Dec.  Dig.  (Key-No.)  §  6;   Cent.  Dig.  §§  30-33. 

16  Lee  v.  Murdock,  4  Pat.  App.  261;  Alderson  v.  Langdale,  3  Barn.  &  Adol. 
660;  Lewis  v.  Kramer,  3  Md.  265;  Benedict  v.  Miner,  58  III.  19;  Lisle  v. 
Rogers,  18  B.  Mon.  (Ky.)  528;  Seebold  v.  Tatlie,  70  Minn.  131,  78  N.  W.  967. 
See  "Alteration  of  Instruments,"  Dec.  Dig.  (Key-No.)  §  6;   Cent.  Dig.  §§  30-33. 

17  Woodworth  v.  Bank,  19  Johns.  (N.  Y.)  391,  10  Am.  Dec.  239;  Whitesides 
v.  Bank,  10  Bush  (Ky.)  501,  19  Am.  Rep.  74 ;  Charlton  v.  Reed,  61  Iowa,  100, 
16  N.  W.  04,  47  Am.  Rep.  808;  Townsend  v.  Wagon  Co.,  10  Neb.  615,  7  N.  W. 
274,  35  Am.  Rep.  493 ;  White  v.  Hass,  32  Ala.  430,  70  Am.  Dec.  549.  See  "Al- 
teration of  Instruments,"  Dec.  Dig.  (Key-No.)  §  6;   Cent.  Dig.  §§  30-33. 

18  Goodman  v.  Eastman,  4  N.  H.  455;  Bank  of  Commerce  v.  Bank,  3  N.  Y. 
230.  Or  by  altering  currency  in  which  note  is  payable.  Darwin  v.  Rippey, 
63  N.  C.  318;  Martendale  v.  Follett,  1  N.  H.  95;  Schwalm  v.  Mclntyre,  17 
Wis.  232.  See  "Alteration  of  Instruments,"  Dec.  Dig.  (Key-No.)  §  4;  Cent. 
Dig.  §§  16,  11. 

19  Warrington  v.  Early,  2  El.  &  BI.  763;  McGrath  v.  Clark,  56  N.  Y.  34,  15 
Am.  Rep.  372;  Weyerhauser  v.  Dun,  100  N.  Y.  150,  2  N.  E.  274;  Benedict  v. 
Miner,  58  HI.  19;  Ivory  v.  Michael,  33  jMo.  398;  Lee  v.  Rtarbird,  55  Me.  491 ; 
Woodworth  v.  Anderson,  63  Iowa,  503,  19  N.  W.  296;  Kilkelly  v.  Martin,  34 
Wis.  525 ;  NefC  v.  Horner,  63  Pa.  327,  3  Am.  Rep.  555 ;  Davis  v.  Henry,  13 
Neb.  497,  14  N.  W.  523 ;  Holmes  v.  Trumper,  22  Mich.  427,  7  Am.  Rep.  001 ; 
Coburn  v.  Webb,  56  Ind.  96,  26  Am.  Rep.  15;  Fay  v.  Smith,  1  Allen  (Mass.) 
477,  79  Am.  Dec.  752.  Sec  "Alteration  of  Instruments,"  Dec.  Dig.  (Key-No.) 
§  J,;   Cent.  Dig.  §§  16,  17. 

20  Bank  of  Limestone  v.  Penick,  5  T.  B.  Mon.   (Ky.)  25;    Pulliam  v.  With- 


§    257)  BY    OPEKATION    OF   LAW  603 

only  does  what  the  law  would  do — that  is,  only  expresses  what  the 
law  implies — is  not  a  material  alteration,  and  therefore  would  not 
avoid  an  instrument."  *^  It  is  possible  for  the  character  of  an  instru- 
ment to  be  affected  by  an  alteration  which  does  not  touch  the  con- 
tractual rights  set  forth  in  it.  If,  for  instance,  after  the  execution 
and  delivery  of  an  unattested  bond,  the  obligee  should  fraudulently, 
and  with  a  view  to  some  improper  advantage,  procure  a  person  who 
was  not  present  at  the  execution  of  the  instrument  to  sign  his  name 
thereto  as  an  attesting  witness,  the  obligor  would  be  discharged. ^^ 
The  alteration  is  material  in  that  it  might  allow  proof  of  the  execu- 
tion of  the  bond  by  proving  such  person's  handwriting.^' 

"It  is  not  to  the  point  that  the  alteration  be  or  be  not  to  the  preju- 
dice of  the  party  against  whom  the  liability  is  sought  to  be  enforced. 
The  courts  will  not  sit  in  judgment  upon  the  question  whether  it  be 
to  the  prejudice  of  the  party  aggrieved  or  not."  ** 

ers,  8  Dana  (Ky.)  98,  33  Am.  Dec.  479;  Martin  v.  Thomas,  24  How.  315,  If 
L.  Ed.  689;  Gardner  v.  Walsh,  32  Eng.  Law  &  Eq.  162;  Smith  v.  Unitet" 
States,  2  Wall.  219,  17  L.  Ed.  788 ;  Henry  v.  Coats,  17  Ind.  161 ;  Wallace  t 
Jewell,  21  Ohio  St.  163,  8  Am.  Rep.  48 ;  Sullivan  v.  Rudisill,  63  Iowa,  158,  If 
N.  W.  856;  Nicholson  v.  Combs,  90  Ind.  515,  46  Am.  Rep.  229.  It  seems, 
however,  according  to  the  weight  of  authority  In  this  country,  that  the  addi- 
tion of  the  signature  of  a  surety  or  guarantor,  not  a  joint  maker  (but  se« 
Brownell  v.  Winnie,  29  N.  Y.  400,  86  Am.  Dec.  341),  does  not  discharge  the 
maker  of  a  note.  Mersman  v.  Werges,  112  U.  S.  139,  5  Sup.  Ct.  65,  28  L.  Ed 
641;  Stone  v.  White,  8  Gray  (Mass.)  589;  McCaughey  v.  Smith,  27  N.  Y.  39; 
Montgomery  R.  Co.  v.  Hurst,  9  Ala.  518 ;  Wallace  v.  Jewell,  21  Ohio  St.  172, 
8  Am.  Rep.  48;  Miller  v.  Flnley,  26  Mich.  249,  12  Am.  Rep.  306.  And  it 
has  been  held  that  obtaining  signature  of  second  surety  does  not  discharge 
first  surety.  Ward  v.  Hackett,  30  Minn,  150,  14  N.  W.  578,  44  Am.  Rep.  187; 
Keith  v.  Goodwin,  31  Vt.  268,  73  Am.  Dec.  345 ;  Sampson  v.  Barnard,  98  Mass. 
359.  Changing  indorser  into  guarantor  is  material.  Belden  v.  Hann,  61  Iowa, 
42,  15  N.  W.  591.  See  "Alteration  of  Instruments,"  Dec.  Dig.  (Key-No.)  §  ^; 
Cent.  Dig.  §§  16,  17. 

212  Pars.  Cont  720;  Aldous  v.  Comwell,  L.  R.  3  Q.  B.  573;  Browu  v. 
Pinkham,  18  Pick.  (Mass.)  172;  Rudesill  v.  Jefferson  Co.  Court,  85  111.  446; 
Houghton  V.  Francis,  29  111.  244;  First  Nat.  Bank  v.  Wolff,  79  Cal.  69,  21 
Pac.  551,  748;  Bank  of  Genesee  v.  Patchin  Bank,  13  N.  Y.  309.  See  "Alter- 
ation of  Instruments,"  Dec.  Dig.  (Key-No.)  §  2;    Cent.  Dig.  §§  l-J/. 

22  Adams  v.  Frye,  3  Mete.  (Mass.)  103;  Marshall  v.  Gougler,  10  Serg.  & 
R.  (Pa.)  164.  So  of  promissory  note.  Brackett  v.  Mountfort,  12  Me.  72; 
Thornton  v.  Appleton,  29  Me.  298;  Homer  v.  Wallis,  11  Mass:  310,  6  Am.  Dec. 
169;  Smith  v.  Dunham,  8  Pick.  (Mass.)  240.  Contra  in  case  of  note.  Ful- 
ler V.  Green,  64  Wis.  159,  24  N.  W.  907,  54  Am.  Rep.  600  (distinguishing  some 
of  cases  aljove  cited).  See  "Alteration  of  Instruments,"  Dec.  Dig.  (Key-No.)  S 
8;    Cent.  Dig.  §§  4M6. 

28  Ante,  p.   486. 

2  4  Norton,  Bills  &  N.  (3d  Ed.)  252;  Chappell  r.  Spencer,  23  Barb.  (N.  Y.) 
584 ;    Gardner  v.  Walsh,  5  El.  &  Bl.  83 ;   Martin  v.  Thomas,  24  llow.  315,  16  L. 


604  DISCHARGE   OF    CONTRACT  (Cll.  11 

B-j  Whom 

It  was  at  one  time  held  in  England  that  any  material  alteration  by 
a  stranger  would  discharge  the  contract,  and  even  now  it  seems  to  be 
there  held  that  such  an  alteration  will  operate  as  a  discharge,  if  it 
was  made  for  the  benefit  of  a  party  to  the  contract,  and  while  the  in- 
strument was  in  the  party's  possession,  whether  the  party  knew  of  or 
consented  to  the  alteration  or  not.^"  The  doctrine  is  not  recognized 
to  any  extent,  if  at  all,  in  this  country.  On  the  contrary,  it  is  held 
that  alteration  by  a  stranger,  without  the  knowledge  or  consent  of 
the  parties,  is  a  mere  spoliation,  and  does  not  discharge  the  contract.^* 

Intent 

The  alteration,  to  effect  a  discharge,  must  be  intentional.  An  al- 
teration by  accident  or  mistake,  occurring  under  such  circumstances 
as  to  negative  the  idea  of  intention,  will  not  invalidate  the  document.^  ^ 
Though  there  are  some  cases  to  the  contrary,  by  the  weight  of  author- 
ity, in  so  far  as  the  instrument  itself  is  concerned,  it  is  immaterial 
whether  the  alteration  was  with  fraudulent  intent  or  not.  Innocent 
but  intentional  alteration  destroys  its  efficacy.  An  alteration,  how- 
ever, without  fraudulent  intent,  will  not  prevent  recovery  on  the 
original  consideration  for  the  instrument.  Where  a  bill,  note,  or  other 
security  is  given  for  a  valuable  consideration  existing  independently 
of  the  instrument,  it  is  generally  held  that  an  alteration  of  the  note 
or  bill  in  a  material  part  by  the  holder  without  authority  of  the  maker 
prevents  a  recovery  upon  the  instrument,  whether  the  alteration  was 
with  or  without  fraudulent  intent.^*    If  the  alteration  was  made  with 

Ed.  GS9;  Coburn  v.  Webb,  56  Ind.  96,  26  Am.  Rep.  15.  See  ''Alteration  of  In- 
struments," Dec.  Dig.  (Key-No.)  §  2;    Cent.  Dig.  §§  1-^. 

2  5  Anson,  Cont  (4th  Ed.)  327;  Pigot's  Case,  11  Rep.  27;  Davidson  v.  Coop- 
er, 11  Mees.  &  W.  778,  13  Mees.  &  W.  343.  See  "Alteration  of  Instruments," 
Dec.  Dig.  (Key-No.)  §  11;  Cent  Dig.  §§  57-72. 

26  Lewis  V.  Payn,  8  Cow.  (N.  Y.)  71,  18  Am.  Dec.  427;  Martin  v.  Insurance 
Co.,  101  N.  Y.  498,  5  N.  E.  338;  United  States  v.  Spalding,  2  Mason,  478,  Fed. 
Cas.  No.  16,365;  Yeager  v.  Musgrave,  28  W.  Va.  90;  Drum  v.  Drum,  133 
Mass.  566 ;  Church  v.  Fowle,  142  Mass.  12,  6  N.  E.  764 ;  Nichols  v.  Johnson, 
10  Conn.  192 ;  Blgelow  v.  Stilphen,  35  Vt  521 ;  Neff  v.  Horner,  63  Pa.  327,  3 
Am,  Rep.  555;  Wickes'  Lessee  v.  Caulk,  5  Har.  &  J.  (Md.)  36;  Condict  v. 
Flower,  106  111.  105;  Hunt  v.  Gray,  35  N.  J.  Law,  227,  10  Am.  Rep.  232; 
Piersol  v.  Grimes,  30  Ind-  129,  95  Am.  Dec.  673 ;  Langenberger  v.  Kroeger,  48 
Cal.  147,  17  Am.  Rep.  418 ;  Moore  v.  Ivers,  S3  Mo.  29 ;  Andrews  v.  Calloway, 
50  Ark.  358,  7  S.  W.  449 ;  Fullerton  v.  Sturges,  4  Ohio  St.  530 ;  White  Sewing 
Mach.  Co.  V.  Dakin,  86  Mich.  581,  49  N.  W.  583,  13  L.  R.  A.  313.  See  "Alter- 
ation of  Instruments,"  Dec.  Dig.  (Key-No.)  §  11;   Cent.  Dig.  §§  57-72. 

2  7  Wilkinson  v.  Johnson,  3  Barn.  &  C.  428;  Raper  v.  Birkback,  15  East,  17: 
Horst  V.  Wagner,  43  Iowa,  373,  22  Am.  Rep.  255 ;  Van  Brunt  v.  Eoff,  35  Barb. 
(N.  Y.)  501 ;  Neff  v.  Horner,  63  Pa.  327,  3  Am.  Rep.  555.  See  "Alteration  of 
Instruments,"  Dec.  Dig.  (Key-No.)  §  11;   Cent.  Dig.  §§  75-76. 

2  8  Alderson  v.  Langdale,  3  Barn.  &  Adol.  660;   Heath  v.  Blake,  28  S.  C.  406, 


§    257)  BY    OPERATION    OF   LAW  605 

fraudulent  intent,  there  can  be  no  recovery,  even  on  the  original  con- 
,  sideration;  ^®    but  recovery  on  the  original  consideration  may  be  had 
if  the  alteration  wa*s  innocent.^**  v 

Consent 

If  the  alteration  is  with  the  consent  of  the  party  claiming  a  dis- 
charge, or  if  it  is  afterwards  ratified  by  him,  there  is  no  discharge.^ ^ 
It  follows  that  where  there  are  several  promisors  or  obligors,  and  some 
consent,  those  so  consenting  remain  bound,  but  those  who  do  not  con- 
sent are  discharged.^^ 

5  S.  E.  842 ;  WOOD  v.  STEELE,  6  Wall.  80,  18  L.  Ed.  725,  Throckmorton  Gas. 
Contracts,  407;  Adams  v.  Frye,  3  Mete.  (Mass.)  103:  Eckhert  v.  Pickel,  59 
Iowa,  545,  13  N.  W.  708.  Contra,  Van  Brunt  v.  Eoflf.  35  Barb.  (N.  Y.)  501; 
Foote  V.  Hambrlck,  70  Miss.  157,  11  South.  567,  35  Am.  St  Rep.  631 ;  Wallace 
V.  Tlce,  32  Or.  283,  51  Pac.  733.  Signing  as  attesting  witness.  Thornton  v. 
Appleton,  29  Me.  298;  Milberry  v.  Storer,  75  Me.  69,  46  Am.  Rep.  361.  See 
"Alteration  of  Instruments"  Dec.  Dig.  {Key-No.)  §  11;   Cent.  Dig.  §§  73-76. 

2  9  Meyer  v.  Huneke,  55  N.  Y.  412;  Smith  v.  Mace,  44  N.  H.  553;  Warder, 
Bushnell  &  Glessner  Co.  v.  Willyard,  46  Minn.  531,  49  N.  W.  300,  24  Am.  St. 
Rep.  250;  Ballard  v.  Insurance  Co.,  81  Ind.  239;  Walton  Plow  Co.  v.  Camp- 
bell, 35  Neb.  174,  52  N.  W.  883,  16  L.  R.  A.  468;  Hunt  v.  Gray,  35  N.  J.  Law. 
227,  10  Am.  Rep.  232;  Vogle  v.  Ripper,  34  111.  100,  85  Am.  Dec.  298;  Ma- 
guire  V.  Eichmeier,  109  Iowa,  301,  80  N.  W.  395.  See  "Alteration  of  Instru- 
ments;' Dec.  Dig.  (Key-No.)  §  11;   Cent.  Dig.  §§  75-76. 

3  0  Sloman  v.  Cox,  1  Cromp.,  M.  &  R.  471 ;  Hunt  v.  Gray,  35  N.  J.  Law,  227, 
10  Am.  Rep.  232;  Matteson  v.  Ellsworth,  33  Wis.  488,  14  Am.  Rep.  706;  Sulli- 
van V.  Rudisill,  63  Iowa,  158,  18  N.  W.  856;  Keene  v.  Weeks,  19  R.  L  309, 
S3  Atl.  446 ;  Gordon  v.  Robertson,  48  Wis.  493,  4  N.  W.  579 ;  Savage  v.  Sav- 
age, 36  Or.  268,  59  Pac.  461.  See  "Alteration  of  Instruments"  Dec.  Dig.  (Key- 
No.)  §  11;    Cent.  Dig.  §§  73-76. 

31  Stoddard  v.  Penniman.  113  Mass.  386;  Commercial  Bank  v.  Warren,  15 
N.  Y.  577 ;  Booth  v.  Powers,  56  N.  Y.  22 ;  Stiles  v.  Probst,  69  111.  382 ;  Han- 
son v.  Crawley,  41  Ga.  303;  Derby  v.  Thrall,  44  Vt.  413,  8  Am.  Rep.  380; 
McRaven  v.  Crisler,  53  Miss.  542;  National  State  Bank  v.  Rising,  4  Hun 
(N.  Y.)  793 ;  Duker  v.  Franz,  7  Bush  (Ky.)  273,  3  Am.  Rep.  314 ;  Speake  v. 
United  States,  9  Cranch,  28,  3  L.  Ed.  645;  Collins  v.  Collins,  51  Miss.  311, 
24  Am.  Rep.  632 ;  Jackson  v.  Johnson,  67  Ga.  167 ;  Canon  v.  Grigsby,  116  111. 
151,  5  N.  E.  302,  50  Am.  Rep.  769;  Payne  v.  Long,  121  Ala.  385,  25  South. 
780.  An  instrument  is  not  avoided  by  inserting  a  provision  for  interest  at 
the  rate  it  was  intended  to  bear.  First  Nat.  Bank  v.  Carson,  60  Mich.  432,  27 
N.  W.  589 ;  nor  by  filling  blanks  with  names  of  parties,  place  of  payment,  or 
otherwise,  as  intended  by  the  parties,  Briscoe  v.  Reynolds,  51  Iowa,  673,  2 
N.  W.  529 ;  Gillaspie  v.  Kelly,  41  Ind.  158,  13  Am.  Rep.  318 ;  Redlich  v.  Doll, 
r>4:  N.  Y.  234.  13  Am.  Rep.  573 ;  Abbott  v.  Rose,  62  Me.  194,  16  Am.  Rep.  427 ; 
Johnston  Harvester  Co.  v.  McLean,  57  Wis.  258,  15  N.  W.  177,  46  Am.  Rep. 
39;  Witto  v.  Williams,  8  S.  C.  290,  28  Am.  Rep.  294.  See  "Alteration  of  In- 
struments," Dec.  Dig.  (Key-No.)  §  12;    Cent.  Dig.  §§  77-92. 

32  Gardiner  v.  Harbeck,  21  111.  129;  Myers  v.  Nell,  84  Pa.  369;  State  v. 
Van  Pelt,  1  Ind.  304;  Warring  v.  Williams,  8  Pick.  (Mass.)  322;  Davis  v. 
Bauer,  41  Ohio  St.  257;  Bell  v.  Mahin,  09  Iowa,  408,  29  N.  W.  331.  See  "Al- 
teration of  Instruments,"  Dec.  Dig.   (Key-No.)  §  12;    Cent.  Dig.  §§  77-.02. 


606  DISCHARGE    OF    CONTRACT  (Ch.  11 

Loss  of  Instrument 

The  loss  of  an  instrument  only  affects  the  rights  of  the  parties  in 
so  far  as  it  occasions  a  difficulty  of  proof,  except*  that,  in  case  of  the 
loss  of  a  negotiable  instrument,  the  holder,  if  he  loses  it,  loses  his 
rights  under  it,  unless  he  offer  to  the  party  primarily  liable  upon  it 
an  indemnity  against  possible  claims.^' 


SAME— BANKRUPTCY 

258.  Bankruptcy  effects  a  statutory  release  from  debts  and  liabil- 

ities provable  under  the  bankruptcy,  when  the  bankrupt 
has  obtained  from  the  court  an  order  of  discharge. 

Discharge  by  bankruptcy  proceedings  operates,  not  to  discharge  the 
contract  itself,  but  rather  as  a  bar  to  a  right  of  action  upon  it.^*  It 
is  wholly  a  matter  of  statutory  regulation,  and  need  not  be  further 
mentioned. 

REMEDIES  ON  BREACH  OF  CONTRACT 

259.  Where  a  contract  is  broken  by  one  of  the  parties,  the  other 

party  acquires,  or  may  acquire,  three  distinct  rights: 

(a)  He  may  be  discharged  from  further  performance. 

(b)  If  he  has  done  anything  under  the  contract,  he  has  a  right  to 

sue  on  the  quantum  meruit,  a  cause  of  action  distinct  from 
that  arising  out  of  the  original  contract,  and  based  upon  a 
contract  created  by  law. 

(c)  He  has  a  right  of  action  on  the  original  contract,  or  term  of 

the  contract  broken,  and  may  maintain: 

(1)  A  suit  to  obtain  damages  for  the  loss  sustained  by  the 

breach. 

(2)  A  suit  to  obtain  specific  performance  of  the  contract  by 

the  other  party.^^ 

We  have  seen  that  if  a  contract  is  discharged  by  the  breach  the 
party  injured  is  exonerated  from  further  performance,  provided  he 
treats  the  breach  as  a  discharge.  Where  he  relies  on  a  discharge, 
his  remedy  is  by  setting  up  his  discharge  as  a  defense  in  an  action 

8  3  Hansard  v.  Robinson,  7  Barn.  &  C.  90;  Conflans  Quarry  Co.  v.  Parker, 
L.  R.  3  C.  P.  1.  See  "Lost  Instruments,"  Dec.  Dig.  {Key-No.)  §  1;  Cent. 
Dig.  §§  1-5. 

3  4  Collier  on  Bankruptcy  (9th  Ed.)  314,  404,  405. 

»B  An?«n,  Cont  (4th  Ed.)  308,  309. 


§    259)  REMEDIES   ON   BREACH   OF   CONTRACT  607 

brought  by  the  other  party  on  the  contract.  In  addition  to  his  right 
to  a  discharge  from  performance,  he  has  a  right,  if  he  has  done  any- 
thing under  the  contract,  to  sue  on  the  quantum  meruit  for  compen- 
sation for  his  partial  performance.^**  This  cause  of  action  is  dis- 
tinct from  that  arising  out  of  the  original  contract.  It  is  based 
upon  a  new  contract,  generally  called  an  implied  contract,  but 
really  a  quasi  contract,  or  contract  created  by  law,  because  of  the 
receipt  by  the  other  party  of  the  benefits  of  such  performance.  In 
addition  to  these  rights,  the  party  so  injured  by  a  breach  has  a 
right  of  action  based  upon  the  original  contract  or  term  of  the  con- 
tract broken.  This  remedy  exists  not  only  where  he  is  discharged 
by  the  breach,  but  also  where  he  is  not  discharged,  or  where, 
though  he  was  entitled  to  claim  a  discharge,  he  has  preferred  to 
waive  such  right,  and  go  on  with  the  contract.  His  remedy  in  this 
case  is  of  two  kinds:  (1)  He  may  seek,  in  a  court  of  law,  to  ob- 
tain damages  for  the  loss  he  has  sustained  by  himself  taking  the 
initiative  and  bringing  an  action  for  damages,  or  by  waiting  until 
the  other  party  sues  him,  and  then  asserting  his  right  by  way  of 
recoupment,  counterclaim,  or  cross  action.  He  may  resort  to  this 
remedy  whether  he  claims  a  discharge  by  reason  of  the  other's 
breach  or  not.  (2)  He  may,  in  the  case  of  certain  contracts  and 
under  special  circumstances,  obtain  specific  performance  of  the  con- 
tract by  the  other  party,  by  bringing  a  suit  in  equity  for  that  pur- 
pose. Of  course  he  would  not  be  entitled  to  such  performance  un- 
less he  performed  the  contract  on  his  part,  or  offered  to  perform  it, 
and  therefore  he  cannot  resort  to  this  remedy  where  he  claims  a 
discharge  from  further  performance. 

We  shall  only  treat  of  these  two  remedies  in  the  most  general 
way,  and  give  briefly  some  of  the  elementary  rules,  for  they  do  not 
properly  come  within  the  scope  of  our  work. 

3  8  Ante,  p.  Phillips  v.  Wiginton,  1  Ad  &  E.  333;    Prickett  v.  Bad?er, 

1  C.  B.  (N.  S.)  296;  Howard  v.  Daly,  61  N.  Y.  362,  369,  19  Am.  Rep.  2S5 ; 
Derby  v.  Johnson.  21  Vt.  17;  Brinkley  v.  Swicegood,  65  N.  C.  626;  Britt  v. 
Hays,  21  Ga.  157;  Urquhart  v.  Mortgage  Co.,  85  Minn.  69,  88  N.  W.  204. 
See,  also,  ante,  p.  590.  See  "Work  and  Labor,"  Dec.  Dig.  {Key-No.)  §  D; 
Cent.  Dig.  §§  23,  24;   "Contracts;'  Cent.  Dig.  §§  1476-1478. 


608  DISCHARGE    OF    CONTRACT  X^^-  ^^ 


SAME— DAMAGES  " 

260.  Every  breach  of  contract  entitles  the  party  injured  to  sue  for 

damages. 

261.  The  rule  as  to  the  measure  of  damages  is  that  the  plaintiff  is, 

so  far  as  money  can  do  it,  to  be  placed  in  the  same  situa- 
tion as  if  the  contract  had  been  performed.  If  he  has  suf- 
fered no  actual  loss,  he  is  entitled  to  nominal  damages. 
Bu1>— 
LIMITATION  OF  RULE— The  damages  recoverable  are  only 
such  as  might  have  been  supposed  by  the  parties  to  be  the 
natural  result  of  the  breach. 

262.  The  parties  may  assess  the  damages  themselves  by  provision 

in  the  contract,  but  they  cannot  provide  for  a  penalty. 

263.  Damages  are  by  way  of  compensation,  and  not  of  punishment, 

and,  as  a  rule,  only  the  pecuniary  loss  can  be  recovered; 
but — 

EXCEPTION — There  is  an  exception  in  case  of  the  breach  of  a 
promise  to  marry. 

The  damages  awarded  for  a  breach  of  contract  should  represent 
the  loss  actually  sustained,  the  rule  of  the  common  law  being,  as 
stated  above,  that  a  party  who  has  been  injured  by  a  breach  of  con- 
tract "is,  so  far  as  money  can  do  it,  to  be  placed  in  the  same  situa- 
tion, with  respect  to  damages,  as  if  the  contract  had  been  per- 
formed." '*  Every  breach  of  contract  gives  the  injured  party  a 
right  of  action,  and  the  right  to  a  verdict  in  his  favor;  but,  if  no 
actual  loss  at  all  accrues  from  the  breach,  he  is  only  entitled  to 
nominal  damages, — that  is,  "a  sum  of  money  that  may  be  spoken  of, 
but  that  has  no  existence  in  point  of  quantity."  *' 

Remote  and  Proximate 

The  rule  just  stated  is  subject  to  the  limitation  that  only  such 
damages  can  be  recovered  as  can  be  deemed  to  have  been  in  the 

8T  See  Anson,  Cont.  (4th  Ed.)  309-312. 

S8  Per  Parke,  B.,  in  Robinson  v.  Harman,  1  Exch.  855.  And  see  GriflBn  v. 
Colver,  16  N.  Y.  489,  69  Am.  Dec.  718;  Cutting  v.  Railway  Co.,  13  Allen 
(Mass.)  381 ;  Croucher  v.  Oaknian,  3  Allen  (Mass.)  185.  See  "Damages," 
Dec.  Dig.   (Key-No.)   §§  117-119;    Cent.  Dig.  §§  285-290. 

8»  Per  Maule,  J.,  in  Beaumont  v.  Greathead,  2  C.  B.  494.  And  see  Excelsior 
Needle  Co.  v.  Smith,  61  Conn.  56,  23  All.  693;  Horton  v.  Bauer,  129  N.  Y. 
148,  29  N.  E.  1;  Watts  v.  Weston,  62  Fed.  136,  10  C.  G.  A.  302;  Barnes  v. 
Brown,  130  N.  Y.  372,  29  N.  E.  760;  Weber  v.  Squier,  51  Mo.  App.  601.  Bee 
"Damages"  Dec.  Dig.  (Key-No.)  §  9;    Cent.  Dig.  §§  7-15. 


§§    260-263)  REMEDIES   ON   BREACH   OF   CONTRACT  609 

contemplation  of  the  parties.  The  breach  of  a  contract  may  result 
in  losses  which  neither  party  contemplated  or  could  contemplate 
at  the  time  the  contract  was  entered  into,  and  the  courts  have  striv- 
en to  lay  down  rules  by  which  the  limit  of  damages  may  be  ascer- 
tained. The  limit  must  depend  upon  the  nature  of  the  particular 
contract,  and  only  the  most  general  rules  can  be  laid  down.  It  is 
said  that  "the  damages  to  which  the  plaintiff  is  entitled  are  such 
as  might  have  been  supposed  by  the  parties  to  be  the  natural  re- 
sult of  a  breach  of  the  contract;  such  as  might  have  been  in  their 
contemplation  when  the  contract  was  made."  *°  Any  special  loss 
which  rhight  accrue  from  a  breach  of  contract,  but  which  would 
not  naturally  and  obviously  flow  therefrom,  must,  to  be  recover- 
able, be  expressly  provided  for  in  making  the  contract.  In  a  lead- 
ing case,*^  the  rules  were  thus  stated:  That  where  a  party  has 
broken  his  contract  the  damages  which  the  other  party  should  re- 
cover should  be  (1)  such  as  may  fairly  and  reasonably  be  consid- 
ered to  arise  naturally — that  is,  according  to  the  usual  course  of 
things — from  the  breach,  or  such  as  may  reasonably  be  supposed 
to  have  been  in  the  contemplation  of  both  parties  at  the  time  they 
made  the  contract,  as  the  probable  result  of  its  breach ;  *^  that  (2) 
if  the  damages  arose  out  of  special  circumstances,  communicated 
and  so  known  to  both  parties  when  the  contract  was  made,  the 
damages  which  the  parties  would  reasonably  contemplate  would  be 
the  amount  of  injury  which  would  ordinarily  follow  from  the 
breach  of  a  contract  under  those  special  circumstances  so  known 
and  communicated;"  but  (3)  if  the  special  circumstances  were  whol- 

4  0  Anson,  Cont  (4th  Ed.)  310;  Hadley  v.  Baxendale,  9  Exch.  341;  Gre- 
bert-Borgnis  v.  Nugent,  15  Q.  B.  Div,  85.  See  "Damages,"  Dec.  Dig  {Key- 
So.)   §§  18,  19;    Cent.  Dig.  §§  S7-5S. 

*i  Hadley  v.  Baxendale,  9  Exch.  341.  See  "Damages,"  Dec.  Dig.  {Eey-'So  ) 
fi§  18,  19;    Cent.  Dig.  §§  81-53. 

4  2  Cutting  V.  Railway  Co.,  13  Allen  (Mass.)  381;  Clark  v.  Moore,  3  Mich. 
63 ;  Carnegie  v.  Holt,  99  Mich.  606,  58  N.  W.  623 ;  Booth  v.  Mill  Co.,  60  N.  Y. 
487 ;  Hanailton  v.  McPherson,  28  N.  T.  72,  84  Am.  Dec.  330 ;  Swain  v.  Schief- 
felin,  134  N.  Y.  471,  31  N.  E.  1025,  18  L.  R.  A.  385;  Blagon  v.  Thompson,  23 
Or.  239,  31  Pac.  647,  18  L.  R.  A.  315 ;  Fleming  v.  Beck,  48  Pa.  300 ;  True  v. 
Telegraph  Co.,  60  Me.  9,  11  Am.  Rep.  156;  Hurd  v.  Dunsniore,  63  N.  H.  171. 
Interest  should  be  allowed  on  damages  from  the  time  of  their  accrual.  In- 
ternational Contracting  Co.  v.  McNichol  (C.  C.)  105  Fed.  553;  Watkins  v. 
Junker.  90  Tex.  584,  40  S.  W.  11.  See  "Damages,"  Dec.  Dig.  (Kcy-Xo.)  §  25; 
Cent.  Dig.  §§  58,  62. 

43  Smeed  v.  Foord,  1  El.  &  El.  002;  Booth  v.  Mill  Co..  60  N.  Y.  487;  Ham- 
mer V.  Schoenfelder,  47  Wis.  455,  2  N.  W.  112'.);  Shepard  v.  Gaslight  Co.,  1." 
Wis.  318,  82  Am.  Dec.  679;  King  v.  Woodbridge,  34  Vt.  5<>5 ;  Smith  v.  Rail 
mad  Co.,  12  Allen  (Mass.)  531,  90  Am.  Doc.  166;  Illinois  Cent.  R.  Co.  v 
Cobb,  64  111.  128;  Watson  v.  Inhabitants  of  Needbani,  161  Mass.  40i  37  N. 
E.  204,  24  L.  R.  A.  287.  More  commimlcatlon  of  special  circumstances  Is  W'H 
Clabk  Cont.(3d  Ed.)— 39 


610  DISCHARGE    OP    CONTRACT  (Ch.  11 

ly  unknown  to  the  party  breaking  the  contract,  he  at  the  most  could 
only  be  supposed  to  have  had  in  his  contemplation  the  amount  of  in- 
jury which  would  arise  generally,  and  in  the  great  multitude  of  cases 
not  affected  by  any  such  special  circumstances.** 

Vindictive,  Punitive,  or  Exemplary  Damages 

Damages  in  an  action  .for  breach  of  contract  are  by  way  of  com- 
pensation for  the  loss  sustained  by  the  breach,  and  never  by  way  of 
punishment;  and  the  plaintiff,  therefore,  cannot  recover  more  than 
his  pecuniary  loss.  This  is  the  general  rule,  but  it  is  subject  to  an 
exception  in  case  of  a  breach  of  promise  of  marriage.  In  such  a  case, 
if  the  promise  was  broken  abruptly,  and  under  humiliating  circum- 
stances, or  if  the  defendant  acted  maliciously  and  in  a  way  to  injure 
the  plaintiff's  character,  exemplary  damages  may  be  recovered.*"* 

Assessment  by  the  Parties 

The  parties  to  a  contract  frequently  assess  the  damages  at  which 
they  rate  a  breach  of  the  contract  by  one  or  both  of  them,  and  intro- 
duce their  assessment  into  the  terms  of  the  contract.  They  have  the 
right  to  do  this,  but,  as  we  have  already  seen,  they  cannot  provide 
for  a  penalty  to  be  paid  by  the  one  who  shall  break  the  contract.*' 

enough  unless  given  under  such  circumstances  as  reasonably  to  imply  that  it 
formed  the  basis  of  the  agreement ;  that  is,  unless  the  circumstances  were 
such  that  it  might  be  supposed  that  a  reasonable  man  would  have  had  them 
in  contemplation  as  a  probable  result  of  a  breach.  British  Columbia  &  Van- 
couver's Island  Spar,  Lumber  &  Saw-Mill  Co.  v.  Nettleship,  L.  R.  3  C.  P.  499 ; 
Home  V.  Railway,  7  C.  P.  583,  591 ;  Booth  v.  Mill  Co..  60  N.  Y.  at  page  49G ; 
Bridges  v.  Stickney,  38  Me.  361 ;  McKiunon  v.  McEwan,  48  Mich.  106,  11  N. 
W.  828,  42  Am.  Rep.  458 ;  Snell  v.  Cottingham,  72  111.  161 ;  Friend  &  T.  Lum- 
ber Co.  V.  Miller,  67  Cal.  464,  8  Pac.  40.  See  ''Damages,"  Dec.  Dig.  (Key- 
xYo.)  §  2S;   Cent.  Dig.  §§  58,  62. 

4*  Cory  V,  Ship  Bldg.  Co.,  L.  R.  3  Q.  B.  181 ;  British  Columbia  &  Vancou- 
ver's Island  Spar,  Lumber  &  Saw-Mill  Co.  v.  Nettleship.  L.  R.  3  C.  P.  499; 
Bartlett  v.  Blanchard,  13  Gray  (Mass.)  429;  Billmeyer  v.  Wagner,  91  Pa.  92; 
Paine  v.  Sherwood,  19  Minn.  315  (Gil.  270)  ;  Mihills  Mfg.  Co.  v.  Day,  50 
Iowa,  250;  Peace  River  Phosphate  Co.  v.  Grafflin  (C,  C.)  58  Fed.  550;  Roch- 
ester Lantern  Co.  v.  Press  Co.,  135  N.  Y.  209.  31  N.  E.  1018;  Thomas,  B.  & 
W.  Mfg.  Co.  V.  Railway  Co.,  62  Wis.  642,  22  N.  W.  827,  51  Am.  Rep.  725; 
Buffalo  Barb-Wire  Co.  v.  Phillips,  64  Wis.  338,  25  N.  W.  208.  See  "Damag- 
es," Dec.  Dig.   {Key-'No.)  §§  22,  23;    Cent.  Dig.  §§  5S-G2. 

45  Southard  v.  Rexford,  6  Cow.  (N.  Y.)  254;  Thorn  v.  Kuapp,  42  N.  Y.  474, 
1  Am.  Rep.  561 ;  Johnson  v.  Travis,  33  Minn.  231,  22  N.  W.  624 ;  McPherson 
V.  Ryan.  59  Mich.  33,  26  N.  W.  321;  Hughes  v.  Nolte.  7  Ind.  App.  526,  34 
N.  E.  745.  Cf.  Clement  v.  Brown,  57  Minn.  314,  59  N.  W.  198.  But  mere 
proof  of  breach  of  contract  of  marriage  without  aggravating  circumstances 
is  not  suflacient  to  authorize  exemplary  damages.  Baumle  v.  Verde,  33  Okl. 
243,  124  Pac.  1083,  41  L.  R.  A.  (N.  S.)  840  and  note.  See  "Damages,"  Dec. 
Dig.  {Key-So.)  §§  57,  S7;   Cent.  Dig..%l  lSS-192. 

4  6  Ante,  p.  515. 


§    264)  REMEDIES   ON   BREACH   OF   CONTRACT  611 

Difficulties  in  Assessment — Speculative  Damages 

The  mere  fact  that  the  ascertainment  of  the  damages  is  difficult 
cannot  deprive  him  of  his  right  to  whatever  damages  he  has  suffered 
as  the  natural  consequence  of  the  breach;  the  difficulty,  when  it 
arises,  must  be  met  by  the  jury.  Thus,  where  a  manufacturer,  who 
was  in  the  habit  of  sending  his  goods  for  exhibition  to  agricultural 
shows,  and  made  a  profit  by  the  practice,  intrusted  goods  to  a  carrier 
to  be  sent  to  a  show,  under  circumstances  which  should  have  brought 
his  object  to  its  notice,  and  they  delayed  the  goods  so  that  they  were 
too  late  for  exhibition,  it  was  held  that,  though  the  ascertainment  of 
damages  was  difficult  and  speculative,  this  was  no  reason  for  not  giv- 
ing damages.*''  It  is  generally  held,  however,  that  while  profits  which 
would  have  been  realized  but  for  the  breach  of  contract  may  be  al- 
lowed as  a  proper  element  of  damages,**  they  must  be  proved  with 
reasonable  certainty,  and  not  be  merely  conjectural,  and  that  specu- 
lative or  contingent  profits  cannot  be  recovered.** 


SAME— SPECIFIC  PERFORMANCE 

264.  A  suit  in  equity  will,  as  a  rule,  lie  for  specific  performance  of  a 
contract,  except — 

EXCEPTIONS — (a)  Where  there  is  an  adequate  remedy  at  law. 

(b)  Where  the  matter  of  the  contract  is  such  that  the  court  can- 

not supervise  performance. 

(c)  Where  the  enforcement  of  specific  performance  would  be  in- 

equitable and  unjust. 

*T  Simpson  v.  Railway  Co.,  1  Q.  B.  Div.  274.  And  see  Wakeman  v.  Manu- 
facturing Co.,  101  N.  Y.  205,  4  N.  E.  264,  54  Am.  Rep.  676 ;  Swain  v.  Schieffe- 
lin,  134  N.  Y.  471,  31  N.  E.  1025,  18  L.  R.  A.  385.  See  "Damages,"  Dec.  Dig. 
(Key-No.)  §  22;    Cent.  Dig.  §§  59-61. 

4  8  Wells  V.  National  Life  Ass'n  of  Hartford,  99  Fed.  222,  39  C.  C.  A.  47G. 
53  L.  R.  A.  33,  and  note;  Emerson  v.  Pacific  Coast  &  Norway  Packing  Co.. 
96  Minn.  1,  104  N.  W.  573,  1  L.  R.  A.  (N.  S.)  445,  113  Am.  St.  Rep.  603,  6 
Ann.  Cas.  973.  See  "Damages,"  Dec.  Dig.  (Key-No.)  §  4O;  Cent.  Dig.  §§ 
72-88. 

48  Griffin  v.  Colver,  16  N.  Y.  489,  69  Am.  Dec.  718;  Dennis  v.  Maxfield.  10 
Allen  (?*Iass.)  138;  U.  S.  v.  BEHAN,  110  U.  S.  338,  4  Sup.  Ct.  81,  28  L.  Ed. 
168,  Throckmorton  Cas.  Contracts,  409;  Howard  v.  Manufacturing  Co.,  139 
U.  S.  199,  11  Sup.  Ct  500,  35  L.  Ed.  147;  Brigham  v.  Carlisle,  78  Ala.  243,  56 
Am.  Rep.  28;  Fairchild  v.  Rogers,  32  Minn.  269,  20  N.  W.  191;  MarUn  v. 
Deetz,  102  Cal.  55,  36  Pac.  368,  41  Am.  St.  Rep.  151 ;  .'Etna  Life  Ins.  Co.  v. 
Nexsen,  84  Ind.  347,  43  Am.  Rep.  91 ;  Allis  v.  McLean,  48  Mich.  428,  12  N.  W. 
640;  Howe  Mach.  Co.  v.  Bryson,  44  Iowa,  150.  24  Am.  Hep.  735;  Hubbard  v. 
Rowell,  51  Conn.  423;  Rice  v.  Candle,  71  Ga.  605;  Lewis  v.  Insurance  Co.,  61 
Mo.  5.34;  Danforth  v.  Railroad  Co.,  99  Ala.  331,  13  South.  51.  See  "Dam^ 
ages,"  Dec.  Dig.  (Key-No.)  §  //O ;    Cent.  Dig.  §§  72-88. 


612  DISCHARGE    OF    CONTRACT  (Cll.  11 

The  courts  of  common  law  have  no  power  to  compel  specific  per- 
formance, and  specific  performance  is  often  the  only  adequate  remedy. 
This  remedy,  however,  is  given  by  courts  of  equity.  They  can  enforce 
a  promise  to  do  a  thing  by  a  decree  for  specific  performance,  and  a 
promise  to  forbear  from  doing  a  thing  by  an  injunction. 

The  exercise  of  this  jurisdiction  by  courts  of  equity  is  limited  by 
certain  rules,  some  of  which  we  have  already  noticed  in  other  connec- 
tions."*" The  subject  being  one  relating  more  peculiarly  to  the  juris- 
diction of  courts  of  equity,  we  can  only  deal  with  it  in  a  very  general 
way. 

Adequate  Remedy  at  Law 

A  suit  for  specific  performance  will  not  lie  if  there  is  an  adequate 
remedy  at  law.  It  will  only  lie  where  the  loss  cannot  be  compensated 
in  damages."^  This  rule  is  well  illustrated  by  the  different  attitudes 
which  the  court  has  assumed  in  this  matter  towards  contracts  for  the 
sale. of  land  and  contracts  for  the  sale  of  goods.  One  who  has  con- 
tracted to  purchase  a  particular  piece  of  land  may  be  unable  to  get  its 
exact  counterpart  elsewhere,  with  the  same  surroundings  and  con- 
veniences. Courts  of  equity  will  therefore  generally  grant  specific  per- 
formance of  contracts  for  the  sale  of  land.°^  On  the  other  hand, 
goods  of  the  kind  and  quality  contracted  for  are  generally  to  be  pur- 
chased elsewhere.  Hence  specific  performance  of  a  contract  for  the 
sale  of  goods  will  not  be  decreed,*'  except  in  the  case  of  specific  chat- 

6  0  Ante,  pp.  73,  203,  292. 

51  Campbell  v.  Potter,  147  111.  576,  35  N.  E.  3G4;  American  Box  Mach.  Co. 
V.  Grossman,  61  Fed.  888,  10  C.  C.  A.  140;  Gove  v.  City  of  Biddleford,  85  Me. 
393,  27  Atl.  204;  Porter  v.  Water  Co.,  84  Me.  195,  24  Atl.  814;  McCarter  v. 
Armstrong,  32  S.  C.  203,  10  S.  E.  953,  8  L.  R.  A.  025.  See  "Specific  Perform- 
ance" Dec.  Dig.   (Key-No.)  §  5;    Cent.  Dig.  §§  5-8. 

5  2  Eastern  G.  R.  Co.  v.  Hawkes,  5  H.  L.  331,  359;  Johnston  v.  Wadsworth, 
24  Or.  494,  34  Pac.  13.  But  courts  of  equity  will  not  even  compel  specific 
performance  of  a  contract  to  buy  land  simply  to  enforce  payment  of  the  pur- 
chase money.  Holley  v.  Anness,  41  S.  G.  349,  19  S.  E.  646.  See  "Speciflo 
Performance,"  Dec.  Dig.  {Key-No.)  §  65;    Cent.  Dig.  §  196. 

5  3  Cuddee  v.  Rutter,  1  P.  Wms.  569,  5  Vin.  Abr.  p.  538,  §  21,  1  White  &  T, 
Lead.  Gas.  Eq.  [4th  Am.  Ed.]  1063;  Lining  v.  Geddes,  1  McCord,  Eq.  (S.  C.) 
304,  16  Am.  Dec.  606;  Cowles  v.  Whitman,  10  Conn.  121,  25  Am.  Dec.  60; 
Kimball  v.  Morton,  5  N.  J.  Eq.  20,  53  Am.  Dec.  621;  Rollins  Inv.  Co.  v. 
George  (C.  G.)  48  Fed.  776.  A  contract  for  the  sale  of  shares  of  corporate 
stock  will  not  be  specifically  enforced  unless  tTieir  value  cannot  readily  be  as- 
certained, or  there  is  some  special  reason  for  the  purchaser's  obtaining  them. 
See  Ryan  v.  McLane,  91  Md.  175,  46  Atl.  340,  50  L.  R.  A.  501,  80  Am.  St.  Rep. 
438,  in  which  specific  performance  was  refused,  and  Hogg  v.  McGuflin,  67 
W.  Va.  456,  68  S.  E.  41,  31  L.  R.  A.  (N.  S.)  491,  In  which  It  was  granted.  See 
"Specific  Performance,"  Dec.  Dig.  {Key-No.)  §  68;    Cent.  Dig.  §  199. 


§    264)  REMEDIES   ON   BREACH    OF   CONTRACT  613 

tels,  the  value  of  which,  either  from  their  beauty,  the  interest  attach- 
ing to  them,  or  some  other  cause,  cannot  be  represented  by  damages.^* 
Inability  of  Court  to  Supervise  and  Insure  Performance 

A  court  of  equity  will  not  decree  specific  performance  where  the 
matter  of  the  contract  is  such  that  it  cannot  supervise  or  insure  its 
execution.^^  This  rule  is  illustrated  by  the  refusal  of  courts  of  equity 
to  decree  specific  performance  of  contracts  involving  personal  serv- 
ices.*"* An  injunction  may  be  used  to  enforce  a  promise  or  covenant 
to  forbear.  It  has  been  held  that  where  an  executory  contract  con- 
tains both  positive  and  negative  promises,  and  the  court  is  unable  to 
enforce  the  former,  it  may  nevertheless  enforce  the  latter  by  an  in- 
junction. Thus  where  a  professional  singer  was  sued  by  the  propri- 
etor of  a  theater  for  specific  performance  of  a  contract  to  sing  at  his 
theater  upon  certain  terms,  and  during  a  certain  period  to  sing  no- 
where else,  the  court  refused  to  enforce  so  much  of  the  contract  as 
related  to  the  promise  to  sing,  but  enforced  the  promise  not  to  sing 
elsewhere  by  granting  an  injunction.^'' 

Specific  Performance  Discretionary 

The  enforcement  of  specific  performance  is  discretionary  with  the 
court,  and  the  court  must  be  satisfied  not  only  that  there  was  a  valid 

54  De  Mattos  v.  Gibson,  4  De  Gex  &  J.  276;  Buxton  v.  Lester,  3  Atk.  3S4 ; 
Hapgood  V.  Rosenstock  (C.  C.)  23  Fed.  86;  Adams  v.  Messinger,  147  Mass. 
185,  17  N.  E.  491,  9  Am.  St.  Rep.  679;  Hull  v.  Pitrat  (C.  C.)  45  Fed.  94; 
Eaton,  Eq.  527.  See  "Specific  Performance,"  Dec.  Dig.  {Eey-yo.)  §  69; 
Cent.  Dig.  §§  200-202. 

5  5  Wilson  V.  Railway  Co.,  L.  R.  9  Ch.  App.  279;  Grape  Creek  Coal  Co.  v. 
Spellman,  39  111.  App.  6.30.  See  ''Specific  Performance,"  Dec.  Dig.  (Key-No.) 
§§  73-75;    Cent.  Dig.  §§  206-210. 

-6  Luniley  v.  Wagner,  1  De  Gex,  M.  &  G.  616;  Webb  v.  England,  29  Beav. 
44;  Clark's  Case,  1  Blackf.  (Ind.)  122.  12  Am.  Dec.  213;  Rutland  Marble 
Co.  V.  Ripley,  10  Wall.  339,  19  L.  Ed.  955 ;  WM.  ROGERS  MFG.  CO.  v.  ROG- 
ERS, 58  Conn.  356,  20  Atl.  467,  7  L.  R.  A.  779.  18  Am.  St.  Rep.  278.  Throck- 
morton Cas.  Contracts,  415.  See  "Specific  Performance,"  Dec.  Dig.  (Keif- 
Ifo.)  §  73,-    Cent.  Dig.  §§  206-20S. 

5  7Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616.  And  see  McCaull  v.  Bra- 
ham  (C.  C.)  16  Fed.  37;  Duff  v.  Russell,  133  N.  Y.  678,  31  N.  E.  622;  Cort  v. 
Lassard,  18  Or.  221,  22  Pac.  1054,  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726;  Port 
Clinton  R.  Co.  v.  Railroad  Co.,  13  Ohio  St.  544;  Daly  v.  Smith,  38  N.  Y. 
Super.  Ct  158;  Id.,  49  How.  Prac.  (N.  Y.)  150;  Richardson  v.  Peacock,  2G 
X.  .7.  Eq.  40.  Cf.  Davis  v.  Foreman  [1894]  3  Ch.  654 ;  Rice  v.  D'Arville,  162 
Mass.  559,  39  N.  E.  ISO;  Welty  v.  Jacobs.  171  111.  624,  49  N.  E.  723,  40  L.  R. 
A.  98.  In  this  country,  however,  an  injunction  will  be  granted  only  where 
the  services  contracted  to  be  performed  are  peculiar,  unique,  or  extraordi- 
nary. WM.  ROGERS  MFG.  CO.  v.  ROGERS,  58  Conn.  356,  20  Atl.  467.  7 
L.  R.  A.  779,  18  Am.  St.  Rep.  278,  Throckmorton  Cas.  Contracts,  415;  H.  W. 
Gossard  Co.  v.  Crosby,  132  Iowa,  155,  109  N.  W.  483,  6  L.  R.  A.  (N.  S.)  1115, 
and  note.  See  "Sptci/Ic  Performance,"  Dee.  Dig.  (Key-No.)  §  73;  Cent.  Diir. 
|§  206-208. 


614  DISCHAU«B    OF    CONTRACT  (Ch.  11 

contract,  but  that  its  enforcement  would  be  equitable  and  just."^^  "It 
must  appear  that  the  enforcement  will  work  no  hardship  and  injus- 
tice, for,  if  that  result  would  follow,  the  court  will  leave  the  parties 
to  their  remedy  at  law,  unless  the  granting  of  the  specific  relief  can 
be  accomplished  with  conditions  which  will  obviate  that  result."  ^^ 


SAME— DISCHARGE  OF  RIGHT  OF  ACTION, 

265.  The  rig'ht  of  action  arising  from  a  breach  of  contract  can 
only  be  discharged  in  one  of  three  ways: 

(a)  By  the  consent  of  the  parties. 

(b)  By  the  judgment  of  a  court  of  competent  jurisdiction. 

(c)  By  lapse  of  time. 


SAME— DISCHARGE  BY  THE  CONSENT  OF  THE 

PARTIES 

266.  Discharge   by    the   consent   of    the    parties    may   take   place 
either — 

(a)  By  release,   which  is  a  gratuitous  waiver  of  the  right  of 

action,  and  must  therefore  be  under  seal. 

(b)  By  accord  and  satisfaction,  which  is  an  agreement  to  dis- 

charge the  right  of  action  based  on  a  consideration  which 
is  executed.**" 

Release 

At  common  law,  a  release  was  a  gratuitous  waiver  by  a  person 
of  a  right  of  action  accruing  to  him  from  a  breach  of  contract 
or  other  obligation.  No  consideration  was  required,  but  it  was 
necessary  that  the  release  should  be  under  seal.®^     The  effect  of  a 

68  Webster  v.  Cecil,  30  Beav.  62 ;  Hennessey  v.  Wool  worth,  128  U.  S.  438, 
9  Sup.  Ct  100,  32  L.  Ed.  500;  Conger  v.  Railroad  Co.,  120  N.  Y.  29,  23  N.  E. 
983 ;  Mansfield  v.  Sherman,  81  Me.  3G5,  17  Atl.  300 ;  Combs  v.  Scott,  7G  Wis. 
6G2,  45  N.  W.  532.  Upon  an  anticipatory  breach  and  suit  brought  before  the 
time  of  performance,  specific  performance  may  be  decreed,  but  only  in  the 
manner  and  at  the  time  provided  by  the  contract.  Miller  v.  Jones,  68  W.  Va. 
520,  71  S.  E.  248,  36  L.  R.  A.  (N.  S.)  408.  See  "Specifio  Performance"  Dec. 
Dig.   (Key-No.)  §  8;    Cent.  Dig.  §§  17,  18. 

'9  Willard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed.  501.  See  "Specific  Perform^ 
ance"  Dec.  Dig.  {Key-No.)  §  8;   Cent.  Dig.  §§  17,  18. 

80  Anson,  Cout  (4th  Ed.)  314. 

81  Mitchell  V.  Hawley,  4  Denio  (N.  Y.)  414,  47  Am.  Dec.  260;  Jackson  v.  Stack- 
hmse,  1  Cow.  (N.  Y.)  122,  13  Am.  Dec,  514;  Shaw  v.  Pratt,  22  Pick.  (Mass.) 
308;    Hunt  v.  Brown,  146  Mass.  253,  15  N.  E.  587;    Ingersoll  v.  Martin,  58 


§    2G6)  REMEDIES   ON   BREACH    OF   CONTRACT  615 

seal  as  dispensing  with  a  consideration  has  now  been  abolished 
in  most  jurisdictions  in  this  country,  and  in  these  jurisdictions  an 
agreement,  even  though  under  seal,  may  not  operate  to  discharge 
a  right  of  action  unless  it  is  supported  by  a  consideration. "^  A 
release,  being  a  species  of  contract,  may  be  rendered  invalid  by 
any  matter  that  would  affect  the  validity  of  an  ordinary  con- 
tract, such  as  incapacity  of  parties,  mistake,  or  fraud."^ 

Accord  and  Satisfaction 

An  accord  and  satisfaction  is  an  agreement,  which  need  not  be 
under  seal,  the  effect  of  which  is  to  discharge  the  right  of  action 
possessed  by  one  of  the  parties  against  the  other.  In  order  to 
have  this  effect,  there  must  be  a  consideration  for  the  promise  of 
the  party  entitled  to  sue.  It  is  further  necessary  that  the  accord 
shall  be  executed;  otherwise  the  agreement  is  an  accord  without 
a  satisfaction. ''*  The  promisor  must  have  obtained  what  he  bar- 
gained for  in  lieu  of  his  right  of  action,  and  he  must  have  obtained 
something  more  than  a  mere  fresh  arrangement  as  to  the  payment 
or  discharge  of  the  existing  liability.^^  It  is  not  meant  by  this 
that  a  promise  can  never  be  received  as  a  satisfaction.  If  the 
promise  and  not  its  performance  is  accepted  in  satisfaction,  it  is 
a  good   accord  and   satisfaction   without  performance.     In   other 

Md.  G7.  42  Am.  Rep.  322 ;  Kidder  v.  Kidder,  33  Pa.  268.  See  "Release,"  Dec. 
Dig.  {Key-'No.)  §  1;   Cent.  Dig.  §§  5-11. 

6  2  34  Cyc.  1045,  1046,  1048,  et  seq. 

8  3  See  Pacific  Mutual  Ins.  Co.  v.  Webb,  157  Fed.  155.  84  C.  C.  A.  603,  13 
Ann.  Cas.  752.  See  "Release,"  Dec.  Dig.  {Key-lslo.)  §§  16-20;  Cent.  Dig.  §§ 
Sl-38. 

6*  Bayley  v.  Homan,  3  Bing.  (N.  C.)  915;  Lynn  v.  Bruce,  2  H.  Bl.  317;  Kro- 
mer  v.  Heim,  75  N.  Y.  574,  31  Am.  Rep.  491;  Hosier  v.  Hursh,  151  Pa.  415, 
25  Atl.  52 ;  Costello  v.  Cady,  102  Mass.  140 ;  Petty  v.  Allen,  184  Mass.  205 ; 
Flack  V,  Garland,  8  Md.  188;  Simmons  v.  Clark,  56  111.  96;  Pettis  v.  Ray, 
12  R.  I.  344;  Hoxsie  v.  Lumber  Co.,  41  Minn.  548,  43  N.  W.  476;  Schlitz  v. 
Meyer,  61  Wis.  418,  21  N.  W.  243;  Cobb  v.  Malone,  86  Ala.  571,  6  South.  G; 
Osilvie  V.  Hallam,  58  Iowa,  714,  12  N.  W.  730 ;  Browning  v.  Crouse,  43  Mich. 
489,  5  N.  W.  664;  Troutman  v.  Lucas,  63  Ga.  466;  Frost  v.  Johnson,  8  Ohio, 
393;  Simmons  v.  Hamilton,  56  Cal.  493;  Johnson's  Adm'r  v.  Hunt.  81  Ky. 
321  ;  Hemingway  v.  Stansell,  106  U.  S.  399,  1  Sup.  Ct.  473,  27  L.  Ed.  245; 
Yazoo  &  M.  V.  R.  Co.  v.  Fulton,  71  Miss.  385,  14  South.  271  ;  Welch  v.  Miller, 
70  Vt.  108,  39  Atl.  749.  In  HARRISON  v.  HENDERSON,  67  Kan.  194,  72 
Pac.  875,  62  L.  R.  A.  760,  100  Am.  St.  Rep.  386,  Throckmorton  Cas.  Contracts, 
418,  it  is  said,  per  Cunningham,  J.:  "An  accord  is  an  agreement,  an  adjust- 
ment, a  settlement  of  former  difficulty,  and  presupposes  a  dilforence,  a  dis- 
agreement, as  to  what  is  right.  A  satisfaction.  In  its  legal  significance  in 
this  connection.  Is  a  performance  of  the  terms  of  the  accord."  See  "Accord 
and  Satisfaction,"  Dec.  Dig.   (Key-No.)   §  i;    Cent.  Dig.  §§  1-JS. 

65  McManus  v.  Bank,  L.  R.  5  Exch.  65.  See  "Accord  and  Satisfaction," 
Dec.  Dig.   {Key-No.)  §  5;    Cent.  Dig.  §§  J,0-J,.5. 


C16  DISCnARGE    OF    CONTRACT  (Ch.  11 

words,  a  new  contract  agreed  upon,  and  accepted,  as  a  satisfac- 
tion, operates  as  an  accord  and  satisfaction.®^  The  satisfaction 
may  consist  in  the  acquisition  of  a  new  right  against  the  debtor, 
as  the  receipt  from  him  of  a  negotiable  instrument  in  lieu  of 
payment;®^  or  of  new  rights  against  the  debtor  and  third  per- 
sons, as  in  the  case  of  a  composition  with  creditors;  ^*  or  of  some- 
thing different  in  kind  from  that  which  the  debtor  was  bound  by 
the  original  contract  to  perform;^®  but  it  must  have  been  taken 
by  the  creditor  as  satisfaction  for  his  claim  in  order  to  operate 
as  a  valid  discharge.  There  can  be  no  satisfaction  v/ithout  accord 
or  agreement  to  that  effect.^" 

As  we  have  seen,  a  part  payment  of  a  liquidated  debt  does  not 
constitute  a  discharge  of  the  entire  debt,  even  though  it  is  accepted 
as  such  by  the  creditor,  unless  it  is  accompanied  by  a  release 
under  seal  or  by  a  new  consideration.'^^  Where,  however,  the 
debt  is  unliquidated  or  the  amount  is  in  dispute,  a  payment  of 
a  less  amount  than  the  sum  claimed  on  condition  that  it  be  accept- 
ed in  full  disc'harge  of  the  debt  constitutes  an  accord  and  satis- 
faction.'^^  In  this  case  the  act  of  the  creditor  in  accepting  pay- 
ment constitutes  evidence  of  his  assent  to  the  terms  on  which  it 
is  tendered. '^^     But  if  the  payment  is  to  constitute  a  satisfaction 

6  6  Babcock  v.  nawkins,  23  Vt.  5G1 ;  Morehouse  v.  Bank,  9S  N.  T.  503; 
Whitney  v.  Cook,  53  Miss.  551 ;  Jones  v.  Perkins,  29  Miss.  139,  64  Am.  Dec. 
136 ;  Ileirn  v.  Carron,  11  Smedes  &  M.  (Miss.)  361,  49  Am.  Dec.  Go ;  Cliristie 
V.  Ccaise,  20  Pa.  430;  Bradshaw  v.  Davis,  12  Tex.  33G ;  Bennett  v.  Hill,  14 
R.  I.  322 ;  Schweider  v.  Lang,  29  Minn.  254.  13  N.  W.  33,  43  Am.  Rep.  202 ; 
Sioux  City  Stock-Yards  Co.  v.  Packing  Co.,  110  Iowa,  396,  81  N.  W.  712.  See 
"Accord  and  Satisfaction,"  Dec.  Dig.   (Key-Xo.)   §  19;    Cent.  Difi.  §§  136-139. 

67  Goddard  v.  O'Brien.  9  Q.  B.  Div.  37 ;  Witherby  v.  Mann,  11  Johns.  (N. 
Y.)  518;  Guild  v.  Butler,  127  Mass.  386;  Varney  v.  Conery,  77  Me.  527,  1 
Atl.  683;  Yates  v.  Valentine,  71  111.  643;  Mason  v.  Campbell,  27  Minn.  54,  6 
N.  W.  405.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  {Key-No.)  §  5;  Cent. 
Dig.  §§  40-45. 

6  8  Ante,  p.  165.  «"  Ante,  p.  163. 

7  0  Preston  v.  Grant,  34  Vt.  201;  Boston  Rubber  Co.  v.  Wringer  Co.,  58  Vt. 
551,  5  Atl.  407.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Kcy-Vo.)  §  IG; 
Cent.  Dig.  §§  116-122. 

71  Ante,  pp.  161-164. 

7  2  Nassoiy  v.  Tomlinson,  148  N.  Y.  326,  42  N.  E.  715,  51  Am.  St.  Rep.  605. 
See   "Accord   and   Satisfaction,"   Dec.   Dig.    (Keij-No.)    §   10;    Cent.   Dig.   §§ 

67-74. 

7  3  In  England,  the  question  as  to  whether  there  has  been  an  accord  and 
satisfaction  Is  one  of  fact,  and  the  mere  circumstance  that  the  creditor  has 
kept  money  or  a  check  tendered  in  full  payment  of  an  unliquidated  demand 
does  not  raise  a  conclusive  presumption  that  it  has  been  accepted  in  full  sat- 
isfaction. Day  V.  McLea,  22  Q.  B.  Div.  610.  To  the  same  effect,  see  Tomp- 
kins V.  Hill,  145  Mass.  379,  14  N.  E.  177.  The  American  cases,  however,  gen- 
erally hold,  anomalously,  that  in  such  case  an  accord  and  satisfaction  re- 
sults, even  though  the  creditor  insists  that  the  payment  is  accepted  merely 


§    267)  REMEDIES   ON   BREACH   OP   CONTRACT  617 

it  must  appear  that  it  was  so  understood  by  the  creditor  at  the 
time  it  was  received  by  him.^*  A  simple  tender  of  a  balance  as  the 
amount  in  good  faith  believed  by  the  debtor  to  be  due  "does  not 
carry  with  it  an  impHcation  or  conclusion  that  by  such  tender  the 
debtor  paid,  or  that  the  creditor  agreed  to  receive,  the  same  in 
full  of  the  amount  due,  where  there  had  been  no  prior  disagree- 
ment or  discussion  as  to  what  was  actually  due."  ^^ 

We  have  already  fully  considered  the  question  of  the  sufficiency 
of  the  consideration.''® 


SAME— DISCHARGE  BY  JUDGMENT 

267.  The  right  of  a  party  to  sue  for  breach  of  contract  is  discharg- 
ed by  the  final  judgment  of  a  court  of  competent  juris- 
diction either  in  his  favor  or  against  him.  In  the  former 
case  the  cause  of  action  merges  in  the  judgment,  while  in 
the  latter  the  judgment  estops  him/^ 

When  the  party  entitled  to  sue  for  the  breach  of  a  contract 
made  with  him  brings  an  action  in  a  court -of  competent  jurisdic- 
tion, and  recovers  a  judgment,  his  right  of  action  is  thereby  dis- 
charged.    It  merges  in  the  judgment.''^     The  result  of  legal  pro- 

on  account.  Fuller  v.  Kemp,  138  N.  Y.  231,  33  N.  E.  1034.  20  L.  R.  A.  785; 
Nassoiy  v.  Tomlinson,  148  N.  Y.  326,  42  N.  E.  715,  51  Am.  St  Rep.  695; 
Laroe  v.  Dairy  Co.,  87  App.  Div.  585,  84  N.  Y.  Supp.  609  (cf.  Mack  v.  Miller, 
87  App.  Div.  359,  84  N.  Y.  Supp.  440)  ;  Anderson  v.  Granite  Co.,  92  Me.  429, 
43  Atl.  21,  69  Am.  St.  Rep.  522;  Rosema  v.  Porter,  112  Midi.  13,  70  ^^  W. 
816:  Lapp  V.  Smith,  183  III.  179,  55  N.  E.  717;  Hull  v.  Johnson,  22  R.  I.  6G. 
46  Atl.  182 ;  Talbott  v.  English,  156  Ind.  299,  59  N.  E.  857.  And  see  Preston 
T.  Grant,  34  Vt.  201.  See  "Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  § 
10;    Cent.  Din.  §§  67-7.*. 

7  4  HARRISON  V.  HENDERSON,  67  Kan.  194.  72  Pac.  875.  62  L.  R.  A.  760, 
100  Am.  St.  Rep.  386,  Throckmorton  Cas.  Contracts,  418:  Canadian  Fish  Co. 
V.  McShane,  80  Neb.  551,  114  N.  W.  594,  14  L.  R.  A.  (N.  S.)  443,  127  Am.  St. 
Rep.  791 ;  Kingsville  Preserving  Co.  v.  Frank,  87  111.  App.  586.  See  "Accord 
and  Satisfaction,"  Dec.  Dig.   (Key-No.)  §  10;    Cent.  Dig.  §§  67-7^. 

' -'  HARRISON  V.  HENDERSON,  67  Kan.  194,  72  Pac.  875,  62  L.  R,  A.  760, 
TOO  Am.  St.  Rep.  386,  Throckmorton  Cas.  Contracts,  418;  ante,  p.  h;4.  See 
"Accord  and  Satisfaction,"  Dec.  Dig.  (Key-No.)  §  10;  Cent.  Dig.  §§  67-7.^, 

7  6  Ante,  pp.  161-164. 

"  Anson,  Cont.  (4th  Ed.)  315,  316. 

78Ma.son  v.  Eldred,  6  Wall.  231,  18  L.  Ed.  783;  Smith  v.  Black,  9  Serg.  & 
R.  (Pa.)  142,  11  Am.  Dec.  686;  Bank  of  North  America  v.  Wheeler,  28  Conn. 
4.33.  73  Am.  Dec.  683;  Miller  v.  Covert,  1  Wend..  (N.  Y.)  487;  Bendernagle 
V.  Cocks,  19  Wend.  (N.  Y.)  207.  32  Am.  Dec.  448;  Turner  v.  Plowdcn,  5  Gill 
&  J.  (Md.)  52,  23  Am.  Dec.  596;  Oliver  v.  Holt,  11  Ala.  574,  4ti  Am.  Inc. 
228;    Boynton  v.   Ball,  105  111.  627;    Pike  v.  McDonald.  :;2  Me.  418,  54  Am. 


618  DISCHARGE    OF    CONTRACT  (Cll.  11 

ceedings  taken  upon  a  broken  contract  may  be  thus  summarized : 
The  bringing  of  an  action  has  not  of  itself  any  effect  in  discharg- 
ing the  right  of  action.  Another  action  may  be  brought  for  the 
same  cause  in  another  court,  and,  though  proceedings  in  such  an 
action  would  be  stayed,  if  they  are  merely  vexatious,  yet  if  action 
for  the  same  cause  is  brought  in  a  home  court  and  in  a  foreign 
court,  the  fact  that  the  defendant  is  being  sued  in  the  latter  would 
not  in  any  way  affect  his  position  in  the  former.''*  When  the 
action  is  pursued  to  judgment,  a  judgment  adverse  to  the  plain- 
tiff discharges  the  obligation  by  estoppel.  The  plaintiff  cannot 
bring  another  action  for  the  same  cause  so  long  as  the  judgment 
stands.®"  The  matter  is  res  judicata.  The  judgment  may  be 
reversed  by  a  higher  court,  or  a  new  trial  granted,  and  the  parties 
may  be  remitted  to  their  original  positions.®^ 

An  adverse  judgment,  in  order  to  discharge  the  obligation  by 
estopping  the  plaintiff  from  reasserting  his  claim,  must  have  pro- 
ceeded upon  the  merits  of  the  case  and  must  be  final.  Where 
the  litigation  has  ended  in  a  discontinuance  or  a  nonsuit,  or  on 
demurrer  for  defect  in  pleading,  so  that  an  actual  decision  on  the 
merits  has  not  been  reached,  or  the  finding  of  a  judge  or  referee 
has  not  passed  into  a  judgment,  and  so  become  absolutely  fixed  and 
final,  the  proceedings  have  no  conclusive  character,  and  cannot 
operate  as  a  bar.*^     So,  if  a  plaintiff  fails  in  his  action  because 

Dec.  507;  Barnes  v.  Gibbs,  31  N.  J.  Law,  317,  80  Am.  Dec.  210.  See  "Judg- 
ment:' Dec.  Dig.   (Key-No.)  §§  5S2-5S^ :    Cent.  Dig.  §§  1079-1089. 

79Hollister  v.  Stewart,  111  N.  Y.  G44,  19  N.  E.  7S2 ;  Wood  v.  Gamble,  11 
Cush.  (Mass.)  8,  59  Am.  Dec.  135;  O'Reilly  v.  Railroad  Co.,  16  R.  I.  388, 
17  Atl.  171,  90G,  19  Atl.  244,  5  L.  R.  A.  3G4.  6  L.  R.  A.  719 ;  Sandwich  Mfg. 
Co.  V.  Earl,  56  Minn.  390,  57  N.  W.  938;  Mcjilton  v.  Love,  13  111.  486,  54  Am. 
Dec.  449;  Smith  v.  Lathrop,  44  Pa.  326,  84  Am.  Dec.  448;  Davis  v.  Morton, 
4  Bush  (Ky.)  442,  96  Am.  Dec.  309.  This  does  not  apply  to  actions  in  rem.^ 
See  "Abatement  and  Revival:'  Dec.  Dig.  (Key-No.)  §  10;  Cent.  Dig.  §§  S6- 
lOJt. 

80  Patrick  v.  Shaffer,  94  N.  Y.  423;  Norton  v.  Doherty,  3  Gray  (Mass.) 
372,  63  Am.  Dec.  758;  Winslow  v.  Stokes,  48  N.  C.  285,  67  Am.  Dec.  242;, 
Russell  V.  Place,  94  U.  S.  606,  24  L.  Ed.  214 ;  Cromwell  v.  Sac  Co.,  94  U.  S.' 
351,  24  L.  Ed.  195 ;  Nispel  v.  Laparle,  74  111.  306.  See  "Judgment:'  Dec.  Dig. 
(Key-No.)  §§  5S2-58Ji;    Cent.  Dig.  §§  1063-10S9. 

81  Clark  V.  Bowen,  22  How.  270,  16  L.  Ed.  337 ;  Mattingly  v.  Lewisohn,  13 
Mont  508,  35  Pac.  111.  See  "Judgment:'  Dec.  Dig.  (Key-No.)  §  580;  Cent. 
Dig.  §  1021 

82  Webb  V.  Buckelew,  82  N.  Y.  555 ;  Audubon  v.  Insurance  Co.,  27  N.  Y. 
216;  Leonard  v.  Barker,  5  Denio  (N.  Y.)  220;  Atkins  v.  Anderson,  63  Iowa, 
739,  19  N.  W.  323;  Taylor  v.  Larkin,  12  Mo.  103,  49  Am.  Dec.  119;  Gould  v. 
Railroad  Co.,  91  U.  S.  526,  23  L.  Ed.  416;  Linington  v.  Strong,  111  111.  152; 
Gage  V.  Ewing,  114  111.  15,  28  N.  E.  379;  Schurmeier  v.  Johnson,  10  Minn. 
319  (Gil.  250) ;   Haws  v.  Tiernan,  53  Pa.  192 ;    Gallup  v.  Lichter,  4  Colo.  App. 


§§    268-269)  REMEDIES   ON   BREACH    OF   CONTRACT  619 

he  has  sued  in  a  wrong  character,  or  because  he  sued  at  a  wrong 
time,  as  in  case  of  an  action  brought  before  fulfillment  of  a  con- 
dition in  the  contract,  such  as  the  expiration  of  a  period  of  credit 
on  the  sale  of  goods, — a  judgment  proceeding  on  these  grounds 
will  not  prevent  him  from  succeeding  in  a  second  action. ^^  It 
is  also  necessary  that  the  judgment  shall  have  been  rendered  by 
a  court  of  competent  jurisdiction  and  shall  be  otherwise  valid.** 
As  has  been  said,  if  the  plaintiff  succeeds,  and  obtains  judgment 
in  his  favor,  the  right  of  action  merges  in  the  judgment,  and  is 
discharged.  A  new  obligation  arises  in  the  judgment,  a  form  of 
the  so-called  "contract  of  record — a  quasi  contractual  obligation." 
The  obligation  arising  from  the  judgment  may  be  discharged  by 
payment  of  the  judgment  debt,  or  by  satisfaction  obtained  by  the 
creditor  from  the  property  of  the  debtor  by  the  process  of  execu- 
tion, or  an  action  quasi  ex  contractu  may  be  brought  upon  it. 


SAME— LAPSE  OF  TIME 

268.  Lapse  of  time  may  affect  the  remedy  of  the  parties  to  a  con- 

tract, but,  in  the  absence  of  statutory  provision,  it  cannot 
affect  their  rights. 

269.  In  all  the  states  there  are  statutes  of  limitation  barring  ac- 

tions on  contracts  unless  they  are  brought  within  a  pre- 
scribed time. 

Laches  may  bar  the  right  to  relief  in  equity,"  and  at  law  a 
creditor's  delay  in  asserting  his  claim  may  raise  a  rebuttable  pre- 

296,  35  Pac.  985;  Baugh  v.  Baugh,  4  Bibb  (Ky.)  556;  Pierce  v.  Hilton,  102 
Cal.  276,  36  Pac.  595 ;  Sivers  v.  Sivers,  97  Cal.  518,  32  Pac.  571.  See  "Judg- 
ment," Dec.  Dig.   (Key-No.)  §  570;    Cent.  Dig.  §§  102S-10J,5. 

83  Bull  V.  Hopkins,  7  Johns.  (N.  T.)  22 ;  McFarlane  v.  Cushman,  21  Wis. 
406;  Brackett  v.  People,  115  111.  29,  3  N.  E.  723;  Rod2;ers  v.  Levy,  36  Neb. 
601,  54  N.  W.  lOSO;  Baxter  v.  Aubrey,  41  Mich.  13,  1  N.  W.  897;  Wood  v. 
Faut,  55  Mich.  185,  20  N.  W.  897.  See  "Judgment,"  Dec.  Dig.  (Key-No.)  §  570; 
Cent.  Dig.  §§  102S-10J,5. 

84  Hickey  v.  Stewart,  3  How.  750,  11  L.  Ed.  814 ;  Stowell  v.  Chamberlain, 
60  N.  Y.  272;  Reading  v.  Price,  3  J.  J.  Marsh.  (Ky.)  62,  10  Am.  Dec.  162; 
Mount  V.  Scholes,  120  111.  394,  11  N.  E.  401 ;  Richardson  v.  Aiken,  84  111.  221 ; 
Oleson  V.  Merrihevv,  45  Wis.  397.  See  "Judgment,"  Dec.  Dig.  (Key-No.)  §§ 
5J,2-5f,8;    Cent.  Dig.  §§  9S7-993. 

86  Eads  V.  Williams,  4  De  Gex,  M.  &  G.  674;  Southcombe  v.  Bishop,  6 
Hare.  213;  Seculovich  v.  Morton,  101  Cal.  673,  30  Pac.  387,  40  Am.  St.  Rep. 
100;  Rogers  v.  Van  Nortwick,  87  Wis.  414,  58  N.  W.  757;  Ilogan  v.  Kjie,  7 
Wash.  595,  35  Pac.  399,  38  Am.  St.  Rep.  910;  Cocanougher  v.  Green,  93  Ky. 
519,  20  S.  W.  542 ;    Rogers  v.  Saunders,  16  Me.  92,  33  Am.  Dec.  635 ;    I'attor 


620  DISCHARGE    OF    CONTRACT  (CW.  11 

sumption  that  the  debt  is  paid ;  ^*  but,  aside  from  this,  lapse  of 
time,  in  the  absence  of  statutory  provision,  does  not  affect  the 
rights  of  the  parties  to  a  contract.  The  rights  arising  from  a 
contract  are  of  a  permanent  and  indestructible  character,  unless 
either  from  the  nature  of  the  contract  or  from  its  terms  it  is  lim- 
ited in  point  of  duration.®^ 

In  all  states,  however,  there  are  "statutes  of  limitations,"  which 
provide  that  actions  on  contracts  must  be  brought  within  a  cer- 
tain number  of  years,  or  be  barred.  The  time  limited  varies  in 
the  different  states.  In  some  states  no  distinction  with  respect 
to  the  time  limited  is  made  between  the  different  kinds  of  con- 
tracts, while  in  others  such  a  distinction  is  made.  These  statutes 
vary  in  other  respects,  and  only  brief  mention  of  some  of  their 
more  general  provisions  can  be  made. 

Disabilities  and  Exceptions 

Though,  as  a  rule,  the  statute  begins  to  run  as  soon  as  the 
cause  of  action  accrues,  and  continues  to  run  until  the  bar  is 
complete,  there  are  certain  circumstances  which  suspend  its  oper- 
ation. It  is  generally  provided  that  infancy,  coverture,  insanity, 
or  imprisonment  shall,  where  the  person  entitled  to  sue  is  affected 
by  any  of  these  disabilities  when  the  cause  of  action  accrues,  sus- 
pend the  operation  of  the  statute  until  the  disability  is  removed. 
A  disability  arising  after  the  period  of  limitation  has  commenced 
to  run  will  not  affect  the  operation  of  the  statute. 

As  a  rule,  ignorance  that  a  right  of  action  exists  will  not  suspend 
the  operation  of  the  statute.  Where,  however,  that  ignorance  was 
produced  by  the  fraud  of  the  defendant,  and  no  reasonable  dili- 
gence would  have  enabled  the  plaintiff  to  discover  that  he  had 
a  cause  of  action,  the  statutory  period  commences  with  the  dis- 
covery of  the  fraud. 

Acknowledgment  and  New  Promise 

Ordinarily  the  statute  of  limitations  is  held  merely  to  bar  the 
remedy,  but  not  to  extinguish  the  right,  and  therefore  the  right 

son  V.  Martz,  8  Watts  (Pa.)  374,  34  Am.  Dec.  474.  See  "Equity,"  Dec.  Dig. 
(Key-No.)  §  67;    Cent.  Dig.  §§  191-196. 

86  Williams  v.  Mitchell,  112  Mo.  300,  20  S.  W.  647;  Knight  v.  McKinney, 
84  Me.  107,  24  Atl.  744;  Wanmaker  v.  Van  Buskirk,  1  N.  J.  Eq.  6S5,  23  Am. 
Dec.  748;  Atkinson  v.  Dance,  9  Yerg.  (Tenn.)  424,  30  Am.  Dec.  422;  Stover 
V.  Duren,  3  Strob.  (S.  C.)  448,  51  Am.  Dec.  634;  Walker  v.  Emerson,  20  Tex. 
706,  73  Am.  Dec.  207.  See  "Payment,"  Dec.  Dig.  (Key-No.)  §  66;  Cent.  Dig. 
§§  176-188. 

8 T  Anson,  Cont  (4th  Ed.)  316;  Llanelly  Ry.  &  Dock  Co.  v.  Railway  Co., 
L.  R.  7  H.  L.  550,  567.  See  "Payment,"  Dec.  Dig.  (Key-No.)  §  66;  Cent.  Dig. 
§§  176-188. 


§§    268-269)  REMEDIES   ON    BREACH   OF   CONTRACT  621 

of  action,  after  it  has  become  barred,  may  be  revived.*'  Where 
a  simple  contract,  for  instance,  has  resulted  in  a  money  debt, 
the  right  of  action  may  be  revived  by  subsequent  acknowledgment 
or  promise.  In  some  jurisdictions  there  are  statutory  provisions 
requiring  that  the  acknowledgment  or  promise,  to  be  effectual, 
must  be  in  writing,  signed  by  the  party  to  be  charged  or  his  duly- 
authorized  agent.  The  sort  of  acknowledgment  or  promise  which 
has  been  held  to  be  requisite  in  order  that  a  simple  contract  debt 
may  be  revived  so  as  to  start  the  running  of  the  statute  anew 
has  been  thus  described:  "There  must  be  one  of  these  three  things 
to  take  the  case  out  of  the  statute:  Either  there  must  be  an 
acknowledgment  of  the  debt,  from  which  a  promise  to  pay  is  to 
be  implied;  or,  secondly,  there  must  be  an  unconditional  promise 
to  pay_ the  debt;  or7  thirdly,  there  must  be  a  conditional  promise 
to  pay  the  debt,  and  evidence  that  the  condition  has  been  per- 
formed." *° 

Same — Part  Payment 

A  debt  barred  by  the  statute  may  also  be  revived  by  a  part 
payment.  A  payment  on  account  of  the  principal,  or  a  payment 
of  interest  on  the  debt,  will  take  the  contract  out  of  the  statute. 
It  is  provided  by  most,  if  not  all,  of  the  statutes  requiring  a  new 
promise  or  acknowledgment  to  be  in  writing,  and  signed  by  the 
promisor  or  his  agent,  that  nothing  therein  contained  shall  take 
away  or  lessen  the  effect  of  such  part  payments.  The  payment, 
to  have  the  effect  of  reviving  the  debt,  must  be  made  with  refer- 
ence to  the  original  debt,  and  in  such  a  manner  as  to  amount  to 
an  acknowledgment  of  it.^"    Where  a  payment  is  made  by  a  debtor 

8  8  Campell  v.  Holt,  115  U.  S.  620,  6  Sup.  Ct.  209,  29  L.  Ed.  483.  Contra, 
Pierce  v.  Seymour,  52  Wis.  272,  9  N.  W.  71,  38  Am.  Rep.  737.  See  "Limita- 
tion 0/  Actions:'  Dec.  Dig.   (Key-No.)  §  1S9 ;    Cent.  Dig.  §§  57//,  593,  621. 

8  9  In  re  River  Steamer  Co.,  6  Ch.  App.  822,  828.  Some  courts  liave  held 
that  a  mere  acknowledgment  of  the  debt  as  existing  is  sufficient  to  remove 
the  bar,  even  though  there  be  an  express  declaration  of  intention  not  to  pay 
it;  but  most  courts  liold  that  this  is  not  enough  (regarding  the  statute  as 
one  of  repose  rather  than  one  of  presumption),  but  that  the  acknowledgment 
must  be  of  such  a  nature  as  to  show  that  the  debtor  intended  to  promise  to 
pay.  WARREN  v.  CLEVELAND,  111  Tenu.  174.  70  S.  W.  910,  102  Am.  St. 
Rep.  749,  Throckmorton  Cas.  Contracts,  422.  Biddel  v.  Brizzolara,  G4  Cal. 
3.-)4,  30  Pac.  (J09;  Phelan  v.  Fitzpatrick,  84  Wis.  240,  54  N.  W.  G14;  Heany 
V.  Schwartz,  155  Pa.  154,  25  Atl.  1078 ;  Perry  v.  Chesley,  77  Me.  393 ;  Hu.ssey 
V.  Kirkman,  95  N.  C.  03.  As  to  conditional  promises,  see  Boyntou  v.  Moul- 
ton,  l.TO  Mass.  248,  34  N.  E.  361.  See  "Limitation  of  Actions,"  Dec.  Di'j. 
{Key-So.)  §  1),5;    Cent.  Dig.  §§  58J,-592. 

BO  Waters  v.  Tompkins,  2  Cromp.,  M.  &  R.  722;  Miner  v.  Lorman,  56  Mich. 
212,  22  N.  W.  205;  State  v.  Corlies,  47  N.  .7.  Law,  108;  Sears  v.  Hicklin,  3 
Colo.  App.  331,  33  Pac.  137;    Benton  v.  Holland,  58  Vt  5.33,  3  Atl.  322;    Bias- 


622  DISCHARGE    OF    CONTRACT  (Ch.  11 

to  his  creditor  without  indicating  upon  which  of  several  debts 
it  is  to  be  applied,  and  it  is  applied  by  the  creditor  to  a  debt  not 
barred  by  the  statute  of  limitations,  such  application  will  prolong 
the  running  of  the  statute  as  to  the  remainder  of  the  debt  for  the 
full  period  from  the  time  it  is  made.  But  if,  in  the  absence  of 
application  by  the  debtor,  it  is  applied  by  the  creditor  to  a  debt 
barred  by  the  statute,  such  application  does  not  remove  the  stat- 
utory bar  as  to  the  balance  of  the  debt;  "to  have  that  effect, 
the  appropriation  must  be  made  by  the  debtor  himself."  "^ 

kower  v.  Steel,  23  Or.  106,  31  Pac.  253.  See  "Limitation  of  Actions"  Dec. 
Dig.  {Key-'No.)  §  151;   Cent.  Dig.  §§  631-636. 

91  Blake  v.  Sawyer,  83  Me.  129,  21  Atl.  834,  12  L.  R.  A.  712,  23  Am.  St. 
Rep.  762.  See  "Limitation  of  Actions"  Dec.  Dig.  (Key-No.)  §  155;  Cent. 
Dig.  §§  62S-6S0. 


§   270)  QUASI   CONTRACT  623 

CHAPTER  XII 
QUASI  CONTRACT 

270.  In  General. 

271.  Money  Paid  for  the  Use  of  Another. 

272.  Money  Received  for  the  Use  of  Another. 

273.  Recovery  for  Benefits  Conferred. 

IN  GENERAL 

270.  Ordinarily,  a  person  can  only  maintain  an  action  ex  contractu 
against  another  by  proving  a  contract  in  fact.  There  are 
circumstances,  however,  under  which  the  law  will  create 
a  fictitious  promise  for  the  purpose  of  allowing  the  rem- 
edy by  action  of  assumpsit.  The  obligation  is  not  a  con- 
tract, but  a  quasi  contract.    It  may  be  founded — 

(a)  Upon  the  judgment  of  a  court. 

(b)  Upon  a  statutory,  official,  or  customary  duty. 

(c)  Upon  the  principle  that  no  one  ought  unjustly  to  enrich  him- 

self at  the  expense  of  another. 

As  we  have  seen  in  treating  of  the  nature  of  contract,  every 
true  contract  involves,  not  only  obligation,  but  agreement.  If 
there  is  no  agreement,  there  can  be  no  true  contract.  There 
may  be  an  obligation,  but,  unless  this  obligation  is  imposed  by 
the  free  consent  of  the  parties,  the  obligation  is  not  a  contractual 
obligation. 

There  are,  however,  as  has  been  stated,  certain  obligations  which 
arise  neither  from  tort  nor  from  contract,  but  which  are  imposed 
or  created  by  law  without  the  assent  of  the  party  bound,  and 
which  are  allowed  to  be  enforced  by  an  action  ex  contractu.  These 
obligations  are  not  contract  obligations,  for  there  is  no  agreement, 
but  they  are  clothed  with  the  semblance  of  contract  for  the  pur- 
pose of  remedy.     They  are  described  by  the  term  quasi  contracts.* 

1  Anson,  Cont.  (8th  Ed.)  3G1  et  seq. ;  Keener,  Quasi  Cont.  c.  1;  Dusenbury 
V.  Speir,  77  N.  Y.  150.  See,  also,  Lawson's  Ex'rs  v.  Lawson,  16  Grat  (Va.) 
230,  80  Am.  Dec.  702;  Sceva  v.  True,  .^)3  N.  H.  627;  Montgomery  v.  Water- 
works Co.,  77  Ala.  248;  Schaeffer  v.  Miller,  41  Mont.  417,  109  Tac.  970.  137 
Am.  St.  Rep.  746.  The  term  "constructive  cohtract"  Is  also  used  to  describe 
such  obligations  created  by  law.  HERTZOG  v.  HERTZOG.  29  Pa.  4(ir>, 
Throclcmorton  Cas.  Contracts,  5.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §§  5, 
27;    Cent.  Dig.  §§  7,  121-1S2. 


624  QUASI    CONTRACT  (Ch.  12 

For  example,  obligation  may  arise  from  the  judgment  of  a 
court  of.  competent  jurisdiction  ordering  something  to  be  done 
or  forborne  by  one  party  in  respect  to  another.  It  may  arise  from 
entry  of  judgment  by  consent  of  the  parties,  in  which  case  the 
element  of  agreement  is  present;  but,  on  the  other  hand,  it  may 
arise  against  the  will  of  the  party  bound  thereby,  in  which  case 
there  is  no  element  of  agreement,  and  therefore  no  true  contract. 
Such  an  obligation  is  quasi  contractual.'^  As  we  have  seen,  how- 
ever, in  the  classification  of  contracts,  it  is  usual  to  divide  con- 
tracts into  simple  contracts,  contracts  under  seal,  and  "contracts 
of  record,"  under  which  are  included  judgments.^ 

Again,  if  A.  has  paid  something  which  B.  ought  to  pay,  or  if 
B.  has  received  something  which  A.  ought  to  receive,  the  law 
imposes  on  B.  the  duty  to  make  good  to  A.  the  advantage  to 
which  A.  is  entitled.  Or  if  A.  has  obtained  money  from  B.  through 
the  medium  of  oppression,  imposition,  extortion,  or  deceit,  or 
by  the  commission  of  a  trespass,  such  monc}'-  may  be  recovered 
back,  for  the  law  imposes  a  duty  on  the  wrongdoer  to  restore 
it  to  the  rightful  owner,  although  this  was  the  very  opposite  of 
his  intention.* 

It  is  obvious  that  the  duty  of  B.  in  such  cases  is  not  contractual. 
Nevertheless,  in  the  classification  of  contracts,  it  has  been  usual 
to  divide  simple  contracts  into  (1)  express  contracts;  (2)  con- 
tracts implied  in  fact;  and  (3)  contracts  implied  in  law.  Under 
this  classification  the  term  "contracts  implied  in  fact"  is  applied 
to  contracts  in  which  the  agreement  of  the  parties  is  evidenced 
by  their  conduct,  and  which  are  true  contracts,  in  distinction  to 
contracts  in  which  the  agreement  is  evidenced  by  words  and  which 
are  said  to  be  express;  and  the  term  "contract  implied  in  law" 
is  applied  to  obligations  created  by  law,"*  or  quasi  contracts.  "This 
treatment  of  quasi  contract,"  says  Professor  Keener,  "is,  in  the 
opinion  of  the  writer,  not  only  unscientific,  and  therefore  the- 
oretically  wrong,   but   is   also   destructive   of   clear   thinking,   and 

2  Keener,  Quasi  Cont  16 ;  State  of  Louisiana  v.  Mayor,  etc.,  of  City  of  New 
Orleans,  109  U.  S.  28.'5,  3  Sup.  Ct.  211,  27  L.  Ed.  936;  O'BRIEN  v.  YOUNG, 
95  N.  Y.  428,  47  Am.  Rep.  64,  Throckmorton  Cas.  Contracts,  36;  Rae  v.  Hul- 
bert,  17  111.  572;  Morse  v.  Tappan,  3  Gray  (Mass.)  411;  Gutta-Percha  &  R. 
Mfg.  Co.  V.  City  of  Houston,  108  N.  Y.  270,  15  N.  E.  402,  2  Am.  St.  Rep.  412 : 
Morley  v.  Lake  Shore  &  M.  S.  Ry.,  146  U.  S.  102,  13  Sup.  Ct.  54,  36  L.  Ed.  925; 
ante,  p.  8.     See  "Contracts,"  Dec.  Dig.  (Kcij-^o.)  §§  i-J;    Cent.   Dig.  U  i-''- 

3  Ante,  p.  58. 

4  See  Dusenbury  v.  Speir,  77  N.  Y.  150.  See  "Contracts,"  Dec.  Dig.  (Key- 
No.)  §  5;   Cent.  Dig.  §  7. 

5  Chudnovski  v.  Eckels,  232  111.  312,  83  N.  E.  846.  See  "Contracts,"  Dec. 
Dig.  (Key-No.)  §  5;    Cent.  Dig.  §  7. 


§    270)  IN    GENERAL  625 

therefore  vicious  in  practice.  It  needs  no  argument  to  establish 
the  proposition  that  it  is  not  scientific  to  treat  as  one  and  the 
same  thing  an  obligation  that  exists  in  every  case  because  of  the 
assent  of  the  defendant,  and  an  obligation  that  not  only  does  not 
depend  in  any  case  upon  his  assent,  but  in  many  cases  exists 
notwithstanding  his  dissent."  ® 

The  explanation  of  this  anomalous  classification,  which  includes 
obligations  created  by  law  among  contracts,  is  to  be  found  in  the 
law  of  remedies.'^  The  only  forms  of  action  at  common  law  were 
actions  of  tort  and  actions  of  contract.  Obligations  created  by 
law  resemble  true  contracts,  in  that  "the  duty  of  the  obligor  is 
a  positive  one;  that  is,  to  act.  In  this  respect  they  both  differ  from 
obligations  the  breach  of  whicli  constitutes  a  tort,  where  the  duty 
is  negative;  that  is,  to  forbear."*  This  and  other  considerations 
suggested  the  analogy  of  contract,  rather  than  of  tort,  and  made 
it  natural,  when  seeking  to  adapt  the  remedy  to  the  right,  to  treat 
obligations  created  by  law  as  contracts  rather  than  torts.  An 
action  of  debt  was  the  remedy  for  breach  of  contract  based  on 
executed  consideration,  where  such  breach  resulted  in  a  liquidated 
or  ascertained  money  claim,  and  also  where  a  statute  or  the  com- 
mon law  or  custom  laid  a  duty  upon  one  to  pay  an  ascertained  sum 
to  another.  Assumpsit  was  primarily  an  action  to  recover  an 
unliquidated  sum,  or  such  damages  as  the  breach  of  a  promise 
had  occasioned  to  the  promisee.^  Owing  to  certain  inconveniences 
attaching  to  the  action  of  debt,  assumpsit  was  preferred  to  debt 
as  a  form  of  action,  and  by  degrees  the  scope  of  the  action  was 
enlarged,  until  the  action  of  assumpsit  came  to  be  used  instead  of 
debt,  where  the  contract  resulted  in  a  liquidated  claim,  and  a 
money  debt  was  stated  in  the  form  of  an  assumpsit  or  undertaking 
to  pay  it.  Thus  it  came  about  that  an  action  might  be  maintained 
in  assumpsit  on  a  liquidated  claim  or  debt;  and  when  the  breach 
of  a  contract  resulted  in  such  a  claim,  the  plaintiff  was  allowed 
to  declare  in  the  form  of  a  short  statement  of  the  debt,  based  upon 
a  request  by  the  defendant,  as  for  goods  sold,  money  lent,  work 
and  labor  supplied,  etc.^°  This  enabled  claims  arising  from  con- 
tract to  be  variously  stated  in  the  same  suit  "as  a  special  agree- 

6  Keener,  Quasi  Cout.  3. 

7  See  Keener,  Quasi  Cont.  c.  1;  An.son,  Cont.  (Sth  Ed.)  3G0-3fJ4 ;  The  His- 
tory of  Assumpsit,  by  Prof.  J.  B.  Ame.s,  2  Marv.  Law  Rev.  1-19,  53-G9.  Ill 
Select  Essays  in  Anslo-Anierican  Legal  History,  25'.). 

•  2  Harv.  Law  Rev.  6.3,  III  Select  Essays  in  Anglo-American  Legal  History. 
292. 

»  Anson,  Cont  (Stb  Ed.)  3GL 

10  Id.  3G2;    Slade's  Case,  4  Co.  Rep.  92.     See  "Assuuipsit,  Action  of,"   Dec. 
Dig.  (Key-Xo.)  §  7;   Cent.  Dig.  §§  S7-//L 
Clabk  Cont.(3d  Ed.) — 10 


626  QUASI   CONTRACT  ^  (Ch.  12 

ment  which  had  been  broken,  and  as  a  debt  resulting  from  an 
agreement,  and  hence  imparting  a  promise  to  pay.  Such  a  mode 
of  pleading  was  called  an  indebitatus  count,  or  count  indebitatus 
assumpsit."  ^^  The  promise  in  such  cases,  resulting  from  the  terms 
of  the  agreement,  although  only  by  an  innovation  in  the  form  of 
remedy  made  the  basis  of  an  assumpsit,  was  actual,  and  not  a  mere 
fiction. ^^  The  form  of  action  thus  evolved,  however,  came  to  be 
applied  to  those  kinds  of  legal  liability  which  had  previously  given 
rise  to  an  action  of  debt,  though  void  of  the  element  of  agreement. 
In  these  cases  the  form  of  remedy  could  be  adapted  to  the  right 
only  by  means  of  a  fiction,  for  to  support  assumpsit  it  was  neces- 
sary to  allege  a  promise,  and  consequently,  to  meet  the  difficulty, 
the  courts  adopted  the  fiction  of  a  promise,  and  it  was  declared 
that  a  promise  was  "implied  in  law."  ^'  It  was  in  this  way  that 
these  obligations  became  clothed  with  the  semblance  of,  and  came 
to  be  classed  as,  contracts.  "For  the  convenience  of  the  remedy," 
they  "have  been  made  to  figure  as  though  they  sprung  from  con- 
tract, and  have  appropriated  the  form  of  agreerfient."  ^* 

Quasi  contracts  fall  under  three  classes:^"  (1)  Obligations 
founded  upon  a  record,  as  a  judgment;  ^®  (2)  obligations  founded 
upon  a  statutory,^^  or  official,  or  customary  duty;^*  and  (3) 
olaligations  founded  "upon  the  fundamental  principle  that  no  one 
ought  unjustly  to  enrich   himself  at  the  expense   of   another,"  ^* 

n  Anson,  Cont.   (8th  Ed.)  362. 

12  See  2  Harv.  Law  Rev.  56,  III  Select  Essays  in  Anglo-American  Legal 
Historj',  285. 

13  Keener,  Quasi  Cont.  4-5. 

14  Anson,  Cont  (8th  Ed.)  362. 

15  2  Harv.  Law  Rev.  64,  III  Select  Essays  in  Anglo-American  Legal  History, 
293 ;    Keener,  Quasi  Cont.  c.  1 ;   Woodward,  Quasi  Cont.  1. 

16  Ante,  p.  60. 

17  Keener,  Quasi  Cont.  16;  State  of  Louisiana  v.  Mayor,  etc.,  of  City  of 
New  Orleans,  109  U.  S.  28o,  3  Sup.  Ct.  211,  27  L.  Ed.  936;  O'BRIEN  v. 
YOUNG,  95  N.  Y.  428,  47  Am.  Rep.  64,  Throckmorton  Cas.  Contracts,  36;  Rae 
V.  Hulbert,  17  111.  572;  Morse  v.  Tappan,  3  Gray  (Mass.)  411;  Gutta-Percha 
&  R.  Manuf  g  Co.  v.  City  of  Houston,  108  N.  Y.  276.  15  N.  E.  402,  2  Am.  St. 
Rep.  412 ;  Pacific  Mail  S.  S.  Co.  v.  Joliffe,  2  Wall.  450,  17  L.  Ed.  805.  Illus- 
trations of  such  an  obligation  arise  where  a  statute  imposes  a  duty  upon  one 
county  or  parish  to  pay  another  for  money  expended  in  the  support  of  a  pau- 
per; or  under  any  other  circumstances  declares  that  one  person  may  recover 
from  another  money  paid  out  by  him  for  the  benefit  of  the  latter ;  or  where  a 
statute  allows  an  action  to  recover  usury  paid,  or  money  lost  and  paid  on  a 
wager.    See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  27;   Cent.  Dig.  §§  121-1S2. 

18  See  Keener,  Quasi  Cont.  17,  18. 

19  2  Harv.  Law  Rev.  64,  III  Select  Essays  in  Anglo-American  Legal  History, 
293 ;  Bloomington  Tp.  Bd.  of  Highway  Com'rs  v.  City  of  Bloomington,  253  111. 
164,  97  N.  E.  280,  Ann.  Cas.  1913A,  471.  See  "Contracts,"  Dec.  Dig.  (Key-No.) 
§§  5,  27;    Cent.  Dig.  §§  7,  121-132. 


§    271)  MONEY   PAID   FOR   THE   USE   OF   ANOTHER  627 

as  the  obligation  to  repay  money  paid  under  a  mistake  or  under 
duress  or  compulsion,  the  obligation  of  an  infant  to  pay  for  neces- 
saries, the  obligation  to  pay  for  benefits  conferred  under  a  contract 
unenforceable  because  within  the  statute  of  frauds  which  the  party 
who  has  received  the  benefit  refuses  to  carry  out,  the  obligation 
to  pay  for  benefits  conferred  under  a  contract  where  full  perform- 
ance is  prevented. 

Within  the  third  class  are  embraced  the  most  important  cases 
of  quasi  contractual  obligation,  and  the  brief  discussion  which 
follows  will  be  confined  to  cases  within  that  class. 


MONEY  PAID  FOR  THE  USE  OF  ANOTHER 

271.  Wherever  one  person  requests  or  allows  another  to  assume 
such  a  position  that  the  latter  may  be  compelled  by  law 
to  discharge  the  former's  legal  liabilities,  the  law  imports 
a  request  and  promise  by  the  former  to  the  latter — a  re- 
quest to  make  the  payment,  and  a  promise  to  repay — and 
the  obligation  thus  created  may  be  enforced  by  assumpsit. 

It  is  a  rule  of  law  that  no  man  "can  make  himself  the  creditor 
of  another  by  paying  that  other's  debt  against  his  will  or  without 
his  consent,"  ^°  or  at  least  without  some  act  on  his  part  which 
will  prevent  him  from  withholding  consent.  Assumpsit  will  not 
lie,  therefore,  for  money  officiously  paid  by  the  plaintiff  for  the 
defendant's  use.  The  defendant  must  have  requested  such  pay- 
ment, or  he  must,  by  his  conduct,  have  made  it  necessary  for  the 
plaintiff  to  pay.  Where  a  person  expressly  requests  another  to 
pay  money  for  him  under  such  circumstances  as  to  import  a 
promise  to  repay,  and  the  money  is  paid  in  accordance  with  the 
request,  the  transaction  involves  an  actual  agreement.  Where 
no  request  in  fact  exists,  and  there  is  no  agreement  in  fact  re- 
specting the  payment,  the  law  may  imply  a  fictitious  request.  As 
a  rule,  wherever  one  person  requests  or  allows  another  to  assume 
such  a  position  that  the  latter  may  be  compelled  by  law  to  dis- 
charge the  former's  legal  liabilities,  the  law  imports  a  request  and 
promise  by  the  former  to  the  latter — a  request  to  make  the  pay- 

20  Johnson  v.  Packet  Co.,  L.  R.  3  C.  P.  43;  Durnford  v.  Messiter,  5  Maule 
&  S.  440;  Hearn  v.  Cullen,  54  Md.  .W3 ;  Turner  v.  Ej;erton,  1  Gill  &  J.  (Md.) 
4:w,  10  Am.  Dec.  235.    See  "Money  Poi£,"  Dec.  Dig.  (Key-No.)  §  1;   Cent.  Dig. 

§§   1-16. 


628  QUASI    CONTRACT  (Ch.  12 

ment,  and  a  promise  to  repay.     It  will  not  do  to  say  that  there 
was  no  agreement  in  fact,  for  the  law  creates  the  promise.*^ 

A  "good  illustration  of  such  an  obligation  is  where  one  of  several 
sureties,  or  other  joint  debtors,  pays  the  whole  debt.  In  such 
a  case  he  is  allowed  to  recover  from  each  of  the  others  his  pro- 
portionate share.  A  request  to  pay  and  a  promise  to  repay  are 
feigned  in  order  to  entitle  him  to  the  remedy  of  assumpsit.-* 
So,  where  an  executor  was  compelled  to  pay  a  legacy  duty  for 
which  the  legatee  was  ultimately  liable,  he  was  allowed  to  recover 
the  amount  from  the  legatee  as  money  paid  for  his  use.^^ 

21  Anson,  Cont.  (Sth  Ed.)  363;  Great  Northern  Ry.  Co.  v.  Swaffield,  L.  R. 
9  Exch.  132 ;  Exall  v.  Partridge,  8  Term  R.  308 ;  Sapsford  v.  Fletcher,  4  Term 
R.  511;  Tnttle  v.  Armstead,  53  Conn.  175,  22  Atl.  677;  Grissell  v.  Robinson,  3 
Bing.  N.  C.  10;  Wells  v.  Porter,  7  Wend.  (N.  Y.)  119;  Houser  v.  McGinnas, 
108  N.  C.  631,  13  S.  E.  139 ;  Hawley  v.  Beverley,  6  Man.  &  G.  221 ;  Johnson 
V.  Packet  Co.,  L.  R.  3  C.  P.  38;  Hales  v.  Freeman,  1  Brod.  &  B.  301;  Hutzler 
V.  Lord,  64  Md.  534,  3  Atl.  891 ;  Turner  v.  Egertou,  1  Gill  &  J.  (Md.)  430,  19 
Am.  Dec.  235:  City  of  Baltimore  v.  Hughes,  1  Gill  &  J.  (Md.)  480,  19  Am. 
Dec.  243;  Iron  City  Tool- Works  v.  Long  (Pa.)  7  Atl.  82;  Beard  v.  Horton, 
86  Ala.  202,  5  South.  207;  Perin  v.  Parker,  25  111.  App.  465.  See  ''Money 
Paid,"  Dec.  Dig.  {Key-'So.)  §  2;   Cent.  Dig.  §  11 ;  "ContracU,"  Cent.  Dig.  §  121. 

22  Kemp  V.  Fender,  12  Mees.  &  W.  421 ;  Holmes  v.  Williamson,  6  Maule  & 
S.  158 ;  Davies  v.  Humphreys,  6  Mees.  &  W.  153 ;  Deering  v.  Wiuchelsea,  2 
Bos.  &  P.  270 ;  Norton  v.  Coons,  6  N.  Y.  33 ;  Doremus  v.  Seldeu,  19  Johns.  (N. 
Y.)  213;  Tobias  v.  Rogers,  13  N.  Y.  59;  Johnson  v.  Harvey,  84  N.  Y.  363,  38 
Am.  Rep.  515;  Aldrich  v.  Aldrich,  56  Vt.  324,  48  Am.  Rep.  791;  Jackson  v. 
Murray,  77  Tex.  644,  14  S.  W.  235;  Nickerson  v.  Wheeler,  118  Mass.  295; 
Wilton  V.  Tazwell.  80  111.  29;  Yates  v.  Donaldson,  5  Md.  389,  61  Am.  Dec. 
283 ;  Sears  v.  Starbird,  78  Cal.  225,  20  Pac.  547 ;  Fletcher  v.  Grover,  11  N.  H. 
3G8,  35  Am.  Dec.  497;  Foster  v.  Burton,  62  Vt.  239,  20  Atl.  326;  Logan  v. 
Trayser,  77  Wis.  579,  46  N.  W.  877 ;  Bushnell  v.  Busbnell,  77  Wis.  435,  46  N. 
W.  442,  9  L.  R.  A.  411.  In  some  jurisdictions,  contribution  between  cosureties 
must  be  enforced  in  equity.  Longley  v.  Griggs,  10  Pick.  (Mass.)  121;  Mc- 
Donald V.  Magruder,  3  Pet.  470,  7  L.  Ed.  744.  And,  where  a  surety  has  been 
compelled  to  pay  the  debt,  he  may,  on  the  same  principle,  where  there  is  no 
express  contract  with  the  principal  (Touissaint  v.  Martinnant,  2  Term  R, 
100),  recover  the  amount  from  his  principal,  as  for  money  paid  to  his  use. 
Alexander  v.  Vane,  1  Mees.  &  W.  511 ;  Pownal  v.  Ferrand,  6  Barn.  «&  C.  439 ; 
Crisfleld  v.  State,  55  Md.  192.  As  a  rule,  no  right  of  contribution  exists  be- 
tween joint  wrongdoers.  Merry  weather  v.  Nixan,  8  Term  R.  186 ;  Boyer  v. 
Bolender,  129  Pa.  324,  18  Atl.  127,  15  Am.  St.  Rep.  723.  But  the  rule  does 
not  apply  where  one  of  them  is  innocent  of  any  intentional  or  actual  wrong, 
and  has  been  compelled  to  pay  damages  which  the  other,  who  was  the  actual 
wrongdoer,  should  have  paid.  In  such  a  case,  on  equitable  principles,  con- 
tribution may  be  enforced.  Churchill  v.  Holt,  127  Mass.  165,  34  Am.  Rep. 
355 ;  Farwell  v.  Becker,  129  111.  261,  21  N.  E.  792,  6  L.  R.  A.  400,  16  Am.  St 
Rep.  267 ;  Village  of  Port  Jervis  v.  Bank,  96  N.  Y.  550 ;  Bailey  v.  Bussing, 
28  Conn.  4r)5.  S'ee  "Principal  and  Surety,"  Dec.  Dig.  (Key-No.)  §  iS^;  Cent. 
Dig.  §§  605-623. 

23  Foster  v.  Ley,  2  Bing.  N.  C.  209;    Bate  v.  Payne,  13  Q.  B.  900;    Hales  v. 


§    271)  MONEY    PAID   FOE   THE    USE    OF   ANOTHES  629 

Another  class  of  cases  falling  under  this  head  are  cases  in  which 
a  person  is  compelled  by  the  wrong  or  fraud  of  another  to  pay 
money  to  a  third  person.  He  may  recover  the  amount  from  the 
person  so  guilty  of  the  wrong  or  fraud.-*  Where,  for  instance,  a 
member  of  a  firm  gives  a  promissory  note,  signed  in  the  partner- 
ship name,  for  a  debt  of  his  own,  and  his  partner' is  compelled  to 
pay  it,  the  latter  may  recover  from  the  former  as  for  money  paid 
to  his  use;^^  and  where  a  carrier,  by  mistake,  delivers  goods  to 
the  wrong  person,  and  he  wrongfully  detains  them,  so  that  the 
carrier  is  compelled  to  pay  their  value,  he  is  liable  to  the  carrier 
for  the  amount  so  paid.-® 

It  must  be  remembered,  as  already  stated,  that  it  is  not  every 
payment  on  another's  account  that  will  make  the  latter  liable. 
No  implied  pjomise  to_repay  is  raised  where  a  person  makes  a 
payment  voluntarily,  and  without  any  legal  liability  or  compulsion, 
in  discharge  of  the  debt  or  liability  of  another  ;^^  nor  where  he 
has  been  compelled  to  make  the  paymeirf"^y  his  own  wrongful 
act;  ^^  nor  where  the  payment  is  made  in  discharge  of  a  liability 
which  is  a  mere  moral  liability,  and  is  not  recognized  in  law;-" 
nor  where  a  payment  is  made  in  discharge  of  another's  liability 
by  express  agreement  with  the  latter.^"  It  has  further  been  held 
that,  to  entitle  a  person  to  recover  from  another  money  paid  for 

Freeman,  1  Brod.  &  B.  391.  See  "Money  Paid,"  Dec.  Dig.  (Key-Xo.)  §  1; 
Cent.  Dig.  §§  1-W. 

.  24  Bleaden  v.  Charles,  7  Bing.  246 ;  Smith  v.  Cuff,  6  Maule  &  S.  IGO ;  ITor- 
ton  V.  Riely,  11  Mees.  &  W.  492 ;  Van  Santen  v.  Oil  Co.,  81  N.  Y.  171.  See 
''Money  Paid"  Dec.  Dig.  (Key-^'o.)  §  i;    Cent.  Dig.  §§  1-16. 

25  Cross  V.  Cheshire,  7  Exch.  43.  See  "Money  Paid,"  Dec.  Dig.  {Key-No.)  § 
1;   Cent.  Dig.  §§  1-16. 

2  8  Brown  v.  Hodgson,  4  Taunt.  188.  And  see  Long  Champs  v.  Kenny.  1 
Dou?.  137.     See  "Money  Paid,"  Dec.  Dig.  (Key-No.)  §  1;   Cent.  Dig.  §§  1-16. 

2  7  Bates  V.  Townley,  2  Exch.  152;  Sleigh  v.  Sloigh,  5  Exch.  514.  Payment 
of  money  by  a  person  to  procure  the  release  of  his  property  from  seizure 
for  another's  debt  does  not  impose  any  liability  on  the  latter  if  the  seizure 
was  unlawful,  or,  rather,  unless  it  is  shown  that  it  was  lawful.  Myers  v. 
Smith,  27  Md.  91.  See  "Money  Paid,"  Dec.  Dig.  {Key-No.)  §  i;  Cent.  Dig.  §§ 
1-16. 

28  Pitcher  v.  Bailey,  8  East,  171.  Where  an  officer,  for  instance,  having 
custody  of  a  prisoner  for  debt,  suffered  him  to  go  at  largo,  and,  In  conse- 
quence, was  compelled  to  pay  the  creditor  himself,  it  was  held  that  he  could 
not  recover  the  amount  from  the  dehtor.  Pitcher  v.  Bailey,  supra.  See  "Motv- 
ey  Paid,"  Dec.  Dig.  {Key-No.)  §  i;  Cent.  Dig.  §§  1-16. 

28  Atkins  V.  Banwell,  2  East,  505.  See  "Money  Paid,"  Dec.  Dig.  {Key-No.) 
I  7;    Cent.  Dig.  §§  1-16. 

so  Action  must  be  brought  on  the  express  agreement.  Spencer  v.  Parry.  3 
Adol.  &  ]•:.  .331 ;  Lubbock  v.  Tribe,  3  Mees.  &  W.  007.  Sec  "Money  Paid,"  Dec. 
Dig.  {Kry-No.)  §  1;   Cent.  Dig.  §§  1-16. 


630  QUASI    CONTRACT  (Ch.  12 

the  latter's  use,  there  must  be  some  privity  between  them.  Legal 
liability  incurred  by  one  person  on  behalf  of  another,  without  any 
concurrence  or  privity  on  the  part  of  the  latter,  will  not  entitle  him 
to  recover  for  money  which,  under  such  circumstances,  he  may  pay 
to  the  latter's  use.  The  liability  must  have  been  in  some  way 
cast  upon  him  by  the  latter.  The  mere  fact  that  he  has  paid, 
under  compulsion  of  law,  what  the  latter  might  have  been  com- 
pelled to  pay,  will  give  him  no  right  of  action  against  the  latter. 
In  an  English  case,  the  plaintiff,  being  entitled  under  a  bill  of 
sale  to  seize  the  defendant's  goods,  did  so,  but  left  the  goods  on 
the  defendant's  premises  until  rent  fell  due  to  the  defendant's 
landlord.  The  landlord  distrained  the  goods,  whereupon  the  plain- 
tiff paid  the  rent,  and  sued  the  defendant  for  the  amount,  as  having 
been  paid  to  his  use.  It  was  held  that  the  facts  gave  the  plaintiff 
no  right  of  action.  "Having  seized  the  goods  under  the  bill  of 
sale,"  it  was  said,  "they  were  his  absolute  property.  He  had  a 
right  to  take  them  away;  indeed,  it  was  his  duty  to  take  them 
away.  He  probably  left  them  on  the  premises  for  his  own  pur- 
poses. ♦  *  *  At  all  events,  they  were  not  left  there  at  the 
request,  or  for  the  benefit,  of  the  defendant."  '^ 

In  all  cases,  to  entitle  the  plaintiff  to  recover  there  must  have 
been  a  payment,  not  necessarily  of  money,  but  of  property  at  least, 
accepted  as  payment  and  in  extinguishment  of  the  claim.  The 
giving  of  a  bond  or  note,  for  instance,  is  not  sufficient,  for  "the 
mere  extinguishment  of  the  original  liability  by  way  of  new  se- 
curity will  not  avail."  *^  It  is  otherwise,  however,  if  land  or  other 
property  is  transferred  absolutely  as  payment,  and  in  extinguish- 
ment of  the  claim.*^ 


MONEY  RECEIVED  FOR  THE  USE  OF  ANOTHER 

272.  Wherever  one  person  has  money  to  which,  in  equity  and  good 
conscience,  another  is  entitled,  the  law  creates  a  promise 
by  the  former  to  pay  it  to  the  latter,  and  the  obligation 
may  be  enforced  by  assumpsit. 

81  England  v.  Marsden,  L.  R.  1  C.  P.  529.  And  see  Bay  City  Bank  v.  Lind- 
say, 94  Mich.  176,  54  N.  W.  42.  But  see  Edmunds  v.  Walliugford,  14  Q.  B. 
Di-v.  811 ;  Keener,  Quasi  Cont.  390.  See  "Money  Paid"  Dec.  Dig.  (Key-No.)  § 
1;   Cent.  Dig.  §§  1-16. 

82AinsIie  v.  Wilson,  7  Cow.  (N.  Y.)  6G2,  17  Am.  Dec.  532;  Taylor  v.  Hig- 
gins,  3  East,  170;  Gumming  v.  Hackley,  8  Johns.  (N.  Y.)  202.  See  "Money 
Paid,"  Dec.  Dig.  (Key-No.)  §  i;   Cent.  Dig.  §§  1-16. 

33  Ainslie  v.  Wilson,  7  Cow.  (N.  Y.)  662,  17  Am.  Dec.  532;  Randall  v.  Rich. 
1]  Mass.  494.     See  "Money  Paid,"  Dec.  Dig.  (Key-No.)  §  i;    Cent.  Dig.  §§  1-16. 


§    272)  MONEY   RECEIVED   FOE   THE    USE    OF    ANOTHER  631 

Contracts  arising  from  agreement  frequently  result  in  the  re- 
ceipt and  holding  of  money  by  one  of  the  parties  for  the  use  of 
the  other;  as,  where  a  person  is  employed  by  another  as  agent  to 
receive  money,  and  to  account  for  and  pay  over  the  amount  re- 
ceived, and  receives  money  by  virtue  of  his  employment.  In  such 
a  case  his  obligation  results  from  agreement.  In  some  cases  a  sim- 
ilar obligation  is  created  by  law.  The  receipt  by  one  person  of 
money  to  which  another  person  is  entitled,  under  some  circum- 
stances, creates  a  debt  without  agreement,  and  even  against  dis- 
sent. The  law  creates  the  debt  and  a  promise  to  pay  it.  The  debt 
is  technically  described  as  a  debt  "for  money  received  by  the 
defendant  for  the  use  of  the  plaintifif,"  or  "for  money  had  and  re- 
ceived." It  has  been  said  that  such  an  action  will  lie  whenever 
the  defendant  has  money  to  which,  in  equity  and  good  conscience, 
the  plaintiff  is  entitled;  ^*  that  the  action  is  equitable  in  its  nature, 
and  will  lie,  generally,  wherever  a  bill  in  equity  would  lie.^"* 

The  obligation  thus  created  from  the  receipt  of  money  can  arise 
only  in  respect  of  money  or  what  is  equivalent  to  money. ^®  Goods 
received  by  the  defendant,  for  instance,  cannot  be  treated  as  money, 
so  as  to  support  such  an  action,  so  long  as  they  are  undisposed  of 
and  remain  in  the  defendant's  hands  ;^^    but  it  is  otherwise  where 

34  Lawson's  Ex'rs  v.  La^^^on,  16  Grat.  (Va.)  230.  80  Am.  Dec.  702;  Barnett  v. 
Warren,  82  Ala.  557,  2  South.  457;  Merchants'  Bank  v.  Rawls,  7  Ga.  191,  50 
Am.  Dec.  304;  Glascock  v.  Lyons,  20  lud.  1,  83  Am.  Dec.  299;  O'Fallou  v.  Bois- 
menu,  3  Mo.  405,  26  Am.  Dec.  678;  Boyett  v.  Potter,  80  Ala.  476,  2  South. 
534;  Vrooman  v.  MoKaig,  4  Md.  450,  59  Am.  Dec.  85;  Teegarclen  v.  Lewis 
(Ind.)  35  N.  E.  24;  O'Conley  v.  City  of  Natchez,  1  Smedes  &  M.  (Miss.)  31, 
40  Am.  Dec.  87;  Jackson  v.  Hough,  38  W.  Va.  236,  18  S.  E.  575.  Money 
paid  on  judgment  before  or  pending  appeal  may  be  recovered  after  the  judg- 
ment is  reversed.  Chapman  v.  Sutton,  68  Wis.  657,  32  N.  W.  683 ;  Clark  v. 
Pinney,  6  Cow.  (N.  Y.)  297;  Kalmbach  v.  Foote,  79  Mich.  236,  44  N.  W.  603; 
Haebler  v.  Myers,  132  N.  Y.  363.  30  N.  E.  963,  15  L.  R.  A.  588,  28  Am.  St.  Rep. 
589;  Scholey  v.  Halsey,  72  N.  Y.  578.  See,  also,  Isom  v.  Johns,  2  Munf.  (Va.) 
272;  Schaeffer  v.  Miller,  41  Mont.  417,  109  Pac.  970,  137  Am.  St.  Rep.  740. 
See  ''Money  Received,"  Dec.  Dig.  (Key-No.)  §  i;   Cent.  Dig.  §  1. 

35  Culbreath  v.  Culbreath,  7  Ga.  64,  50  Am.  Dec,  375;  McCrea  v.  Purmort. 
16  Wend.  (N.  Y.)  400,  30  Am.  Dec.  103;  Kennedy  v.  Insurance  Co.,  3  Har.  & 
J.  (Md.)  367,  6  Am.  Dec.  499.  See  "Money  Received,"  Dec.  Dig.  (Kcu-No.)  § 
1;    Cent.  Dig.  §  /. 

38  Leake,  Cont.  67;  Keener,  Quasi  Cont.  139,  170;  Foster  v.  Dupre,  5  Mart. 
(O.  S.  La.)  6,  12  Am.  Dec.  466;  Bi-undage  v.  Village  of  Port  Chester,  102  N. 
Y.  494,  7  N.  E.  398;  Lee  v.  Merrit,  8  Q.  B.  820;  Nightingale  v.  Devisme.  5 
Burrows,  2589;  Scott  v.  Miller,  3  Ring.  N.  C.  811;  Atkins  v.  Owen,  4  Adol. 
&  E.  819;  Balch  v.  Patten,  45  Me.  41,  71  Am.  Dec.  526;  Lil.iiy  v.  Robin.son, 
79  Me.  168,  9  Atl.  24.  See  "Money  Received,"  Dec.  Dig.  (Kcy-Xo.)  §  2;  Cent. 
Dig.  §§  2-5. 

37  Thurston  v.  Mills,  10  East,  254;  Hendricks  v.  Goodrich,  15  Wis.  G79 ; 
Moises  V.  Arnold,  43  Iowa,  187,  22  Am.  Rep.  239;    Stcarn.s  v.  Dillingham,  22 


632  QUASI   CONTRACT  (Ch.  12 

they  have  been  sold  and  converted  into  money  by  him."  In  such 
a  case  the  right  to  recover  is  based  on  the  receipt  by  the  defendant 
of  money  belonging  to  the  plaintiff,  and  the  amount  of  money 
received,  and  not  the  value  of  the  goods,  is  the  measure  of  recovery. 
It  follows  from  this  that  if  the  money,  or  an  equivalent,  is  not 
received  for  the  goods,  even  though  they  may  have  been  sold;^* 
or  if  they  have  been  merely  exchanged  for  other  goods;*"  or  if 
the  amount  cannot  be  ascertained  *^ — the  action  will  not  lie.  The 
plaintiff  must  seek  some  other  remedy. 

It  has  been  said  that  an  action  for  money  had  and  received  will 
not  lie  unless  there  is  some  privity  between  the  plaintiff  and  the 
defendant;*^  but  there  need  be  no  privity  other  than  such  as 
arises  out  of  the  fact  that  the  defendant  has  received  the  plaintiff's 
money,  which  in  equity  and  good  conscience  he  ought  not  to  re- 
tain." 

Same — Debts  Arising  from  Tort — Waiver  of  Tort 

A  frequent  illustration  of  a  quasi  contractual  obligation  of  this  kind 
arises  where  a  person  obtains  another's  money  by  wrongful  or  fraudu- 
lent means.  Where  one  person  has  wrongfully  taken  another's  money, 
or  has  taken  his  property  and  converted  it  into  money,  the  latter  has 

Vt.  024,  54  Am.  Deo.  88 ;  Smith  v.  Jernigan,  83  Ala.  256,  3  South.  515 ;  Tiittle 
r.  CMmpbell,  74  Mich.  652,  42  N.  W.  384,  16  Am.  St.  Rep.  652;  Moody  v. 
Walker,  89  Ala.  819,  7  South.  246.  See  "Money  Received,"  Dec.  Dig.  {Key- 
No.)  §  S;    Cent.  Dig.  §  6. 

38  Leake,  Cont.  50;  Keener,  Quasi  Cont.  170;  Lamiue  v.  Dorrell,  2  LcL 
Rayni.  1216;  Gilmore  v.  Wilbur,  12  Pick.  (Mass.)  120.  22  Am.  Dec.  410;  Park- 
er V.  Crole,  5  Bing.  63;  Oughton  v.  Seppings,  1  Barn.  &  Adol.  241;  Staat  v. 
E^ans,  35  111.  455;  Notley  v.  Buck,  8  Barn.  &  C.  160;  Olive  v.  Olive,  95  N.  C. 
485;  Powell  v.  Pees,  7  Adol.  &  E.  426;  Comstock  v.  Hier,  73  N.  Y.  269,  29 
Am.  Rep.  142;  Barnett  v.  Warren.  82  Ala.  557,  2  South.  457;  Thornton  v. 
Strauss,  79  Ala.  164.  See  ''Money  Received,"  Dec.  Dig.  {Key-No.)  §  3;  Cent. 
Dig.  §  6. 

38  Budd  V.  Ililer,  27  N.  J.  Law,  43 ;  Rosenberg  v.  Block,  54  N.  Y.  Super. 
Ct.  537.  Receipt  of  equivalent.  Miller  v.  Miller,  7  Pick.  (Mass.)  133,  19  Am. 
Dec.  264;  Ainslie  v.  Wilson,  7  Cow.  (N.  Y.)  662,  17  Am.  Dec.  532;  Doon  v. 
Ravey,  49  Vt.  293.  See  ''Money  Received,"  Dec.  Dig.  {Key-No.)  §  3;  Cent. 
Dig.  §  6. 

40  Fuller  V.  Duren,  36  Ala.  73,  76  Am.  Dec.  318;  Kidney  v.  Persons,  41  Vt 
386,  98  Am.  Dec.  595.  See  "Money  Received,"  Dec.  Dig.  {Key-No.)  §  3;  Cent. 
Dig.  §  6. 

41  Saville,  Somes  &  Co.  v.  Welch,  58  Vt.  683,  5  Atl.  491 ;  Glasscock  v.  Hazell, 
109  N.  C.  145,  18  S.  E.  789.  See  "Money  Received,"  Dec.  Dig.  {Key-No.)  §  3; 
Cent.  Dig.  §  6. 

42  Sergeant  v.  Stryker,  16  N.  J.  Law,  464,  32  Am.  Dec.  404.  See  "Money 
Received,"  Dec.  Dig.  {Key-No.)  §  5;   Cent.  Dig.  §§  14-20. 

43  Walker  v.  Conant,  65  Mich.  194,  31  N.  W.  786;  Pugh  v.  Powell  (Pa.)  11 
Atl.  570;  Drake  v.  Whaley,  35  S.  C.  187,  14  S.  E.  397.  See  "Money  Received," 
Dec.  Dig.  {Key-No.)  §  5;  'cent.  Dig.  §§  lJ,-20. 


§    272)  MONEY    RECEIVED   FOR   THE    USE    OF    ANOTHER  633 

a  right  of  action  ex  delicto  for  the  wrong  done  to  him,  as  by  an  action 
of  trespass  or  trover,  or  by  an  action  on  the  case  for  the  fraud.  He 
is  not  always  restricted,  however,  to  an  action  ex  delicto  for  the  spe- 
cific wrong,  but  may  in  general  waive  the  tort,^^  and  sue  in  assumpsit 
for  the  money  as  for  money  received  for  his  use.*^ 

The  fundamental  fact  upon  which  this  right  of  action  depends  is 
that  the  defendant  has  received  money  belonging  to  the  plaintiff,  or  to 
which  the  plaintiff  is  entitled.  It  is  not  sufficient  to  show  that  the 
defendant  has  by  fraud  or  wrong  caused  the  plaintiff  to  pay  money 
to  others  than  the  defendant,  or  to  otherwise  sustain  loss  or  dam- 
age.*® "Assuming  a  defendant  to  be  a  tort  feasor,  in  order  that  the 
doctrine  of  waiver  of  tort  may  apply,  the  defendant  must  have  un- 
justly enriched  himself  thereby.  That  the  plaintiff  has  been  impover- 
ished by  the  tort  is  not  sufficient.  If  the  plaintiff's  claim,  then,  is  in 
reality  to  recover  damages  for  an  injury  done,  his  sole  remedy  is  to 
sue  in  tort."  *' 

44  This  expression  Is  generally  used.  As  pointed  out  by  Prof.  Keener,  the 
doctrine  of  waiver  of  tort  and  suit  in  assumpsit  is  simply  a  question  of  the 
election  of  remedies.  "The  remedies  in  tort  and  assumpsit  not  being  con- 
current, a  plaintiff  is  compelled  to  elect  which  remedy  he  will  pta-sue;  and. 
If  he  elect  to  sue  in  assumpsit,  he  is  said  to  waive  the  tort."  Keener,  Quasi 
Cont.  159;  Cooper  v.  Cooper,  147  Mass.  370,  17  N.  E.  892,  9  Am.  St  Rep.  721. 
If  the  plaintiff  waives  the  wrongful  character  of  the  taking,  or  makes  his 
election,  by  recovering  the  money  as  a  debt,  or  otheru'ise,  he  thereby  pre- 
cludes himself  from  taking  advantage  of  it  as  a  tort.  Brewer  v.  Sparrov?-,  7 
Bam.  &  C.  310;  Lithgoe  v.  Vernon,  5  Hurl.  &  N.  ISO;  Thompson  v.  How- 
ard, 31  Mich.  309;  Huffman  v.  Hughlett,  11  Lea  (Tenn.)  549.  He  cannot  ac- 
cept the  proceeds  of  his  goods  which  have  been  wron.gfully  taken  and  sold,  as 
a  debt,  and  likewise  claim  damages  for  the  injury  done  in  the  wrongful  taking 
and  sale.  Brewer  v.  Sparrow,  7  Barn.  &  C.  310.  Moreover,  he  cannot  waive 
the  wrong,  or  make  his  election  in  part  only.  Therefore,  if  he  accepts  part 
of  the  proceeds  or  price  of  the  goods,  he  is  bound  to  Ireat  the  balance  as  a 
debt.  Lythgoe  v.  Vernon,  5  Hurl.  &  N.  ISO.  A  mere  claim  to  a  debt  in  re- 
spect of  the  value  of  goods  wrongfully  obtained,  if  not  acquiesced  in  by  the 
other  party,  does  not  constitute  an  election  so  as  to  waive  the  tort.  Valpy  v. 
Sanders,  5  C.  B.  8SG.  See  "Money  Received,"  Dec.  Dig.  (Kctj-Xo.)  §  8;  Cent. 
Dig.  §  5^. 

4s  Neate  v.  Harding,  6  Exch.  349;  Cory  v.  Freeholders,  47  N.  J.  Law,  181  ; 
Burton  v.  Driggs.  20  Wall.  125,  22  L.  Ed.  299;  Loomis  v.  O'Neal,  73  Mich. 
582,  41  N.  W.  701;  People  v.  Wood,  121  N.  Y.  522,  24  N.  E.  952;  Kidney  v. 
Persons,  41  Vt.  386,  98  Am.  Dec.  595;  Lubert  v.  Chauviteau.  3  Cal.  458,  58 
Am.  Dec.  415;  Kiewert  v.  Rindskopf.  4G  Wis.  481,  1  N.  W.  1G3.  32  Am.  Rep. 
731;  Western  A.ssur.  Co.  v.  Towle,  65  Wis.  247,  26  N.  W.  104;  (lilmore  v. 
Wilbur,  12  Pick.  (Mass.)  120,  22  Am.  Dec.  410;  Dashaway  Ass'n  v.  Rogers. 
79  Cal.  211,  21  Pac.  742;  O'Conley  v.  City  of  Natchez,  1  Smedes  &  M.  (Mi.ss.) 
81,  40  Am.  Deo.  87.  See  "Actum,"  Dec.  Dig.  (Key-No.)  §  28;  "Assumnsit," 
Cent.  Dig.  §§  J,2-5l 

te  National  Trust  Co.  v.  Gloason.  77  N.  T.  400,  33  Am.  Rep.  032.  See  "Mon- 
ey Received,"  Dec.  Dig.  (Kcy-'No.)  ^  6;    Cent.  Dig.  §5  I'>.  2/-27. 

«T  Keener,  Quasi  Cont.  100,  citing,  among  other  cases,  Patterson  v.   Prior, 


634  QUASI    CONTRACT  (Ch.  12 

It  is  impossible  within  the  scope  of  this  work  to  go  at  much  length 
into  the  different  circumstances  under  which  the  law  will  create  this 
obligation.     It  must  suffice  to  mention  the  most  important. 

Where  a  person  steals  another's  money  or  property,  or  obtains  it 
by  false  pretenses,  the  fact  that  a  crime  has  been  committed  will  not 
prevent  a  civil  action  by  the  person  injured.  He  may  sue  the  thief  in 
tort,  or  he  may  elect  to  sue  in  assumpsit  as  for  money  received  for  his 
use.*^ 

The  same  is  true  in  any  case  in  which  one  person,  by  means  of  tres- 
pass, fraud,  or  other  tortious  means,  obtains  another's  money.*® 

Same — Money  Obtained  by  Fraud  or  Duress 

Where  a  person  has  obtained  money  from  another  under  an  agree- 
ment which  the  latter  has  the  right  to  avoid  on  the  ground  of  fraud, 
duress,  or  undue  influence,  the  latter,  on  avoiding  the  contract,  may 
recover  the  amount  as  money  received  for  his  use.^° 

Money  obtained  by  means  of  duress  or  compulsion  may  in  like  man- 
ner be  recovered  in  assumpsit.''^  Duress  may  consist,  as  we  have 
seen,  in  violence  or  unlawful  imprisonment,**^  or  threats  of  violence  ^^ 

18  Ind.  440.  81  Am.  Dec.  367 ;  National  Trust  Co.  v.  Gleason,  77  N.  Y.  400,  33 
Am.  Rep.  G32 ;  New  York  Guaranty  &  Indemnity  Co.  v.  Gleasou,  78  N.  Y.  503 ; 
Tightmeyer  v.  Mongold,  20  Kan.  90 ;  Fanson  v.  Linsley,  20  Kan.  235.  And  see 
Stoclvett  V.  Watkins'  Adm'rs,  2  Gill  &  J.  (Md.)  326,  20  Am.  Dec.  438.  See 
"Assumpsit,  Action  of,"  Dec.  Dig.  {Kei/-No.)  §  8;   Cent.  Dig.  §§  Jt2-5Jf. 

48  Holt  V.  Ely,  1  El.  &  Bl.  795;  Chowne  v.  Baylis,  31  Law  J.  Ch.  757;  Stone 
V.  Marsh,  6  Bam.  &  C.  551 ;  Hindmarch  v.  Hoffman,  127  Pa.  284,  18  Atl.  14, 
4  L.  R.  A.  368,  14  Am.  St.  Rep.  842;  Litt  v.  Martindale,  18  C.  B.  314.  See 
"Money  Received,"  Dec.  Dig.  {Key-No.)  §  S;    Cent.  Dig.  §  SO. 

49  Catts  V.  Phalen,  2  How.  876,  11  L.  Ed.  306 ;  Western  Assur.  Co.  v.  Towle, 
65  Wis.  247,  26  N.  W.  104 ;  Kiewert  v.  Rindskopf,  46  Wis.  481,  1  N.  W.  103, 
32  Am.  Rep.  731  ;  Marsh  v.  Keating,  1  Bing.  N.  C.  198;  Cory  v.  Freeholders^ 
47  N.  J.  Law,  181 ;  Burton  v.  Diiggs,  20  Wall.  125,  22  L.  Ed.  299.  See  "Mon- 
ey Received,"  Dec.  Dig.  {Key-No.)  §  8;  Cent.  Dig.  §  30. 

BoThornett  v.  Haines,  15  Mees.  &  W.  367;  Street  v.  Blay,  2  Barn.  &  Adol. 
456;  Dashaway  Ass'n  v.  Rogers,  79  Cal.  211,  21  Pac.  742;  Gompertz  v.  Den- 
ton, 1  Cromp.  &  M.  207 ;  Foster  v.  Bartlett,  62  N.  H.  617 ;  ante,  p.  292.  See 
"Money  Received,"  Dec.  Dig.  {Key-No.)  §  8;    Cent.  Dig.  §  SO. 

51  Shaw  V.  Woodcock,  7  Barn.  &  C.  73 ;  Atlee  v.  Backhouse,  3  Mees.  &  W. 
633 ;  Chandler  v.  Sanger,  114  Mass.  364,  19  Am.  Rep.  367 ;  Preston  v.  City  of 
Boston,  12  Pick.  (Mass.)  7.  On  this  subject  generally,  see  ante,  p.  298,  and 
cases  there  collected.  See  "Money  Received,"  Dec.  Dig.  {Key-No.)  §  8;  Cent. 
Dig.  §  SO. 

52  De  Mesnil  v.  Dakin,  L.  R.  3  Q.  B.  18.  As  we  have  seen  in  another  con- 
nection, even  a  legal  arrest  and  impri.sonment  may  be  duress  if  there  is  abuse 
of  process.  Ante,  p.  300 ;  Heckman  v.  Swartz,  64  Wis.  48,  24  N.  W.  473.  See 
"Contracts,"  Dec.  Dig.  {Key-No.)  §  95;  Cent.  Dig.  §§  J,S1-U0;  "Payment," 
Dec.  Dig.  {Key-No.)  §  87;  Cent.  Dig.  §§  283-2S7. 

6  3  Ante,  pp.  297-30L 


§    272)  MONEY    RECEIVED   FOE   THE    USE    OF    ANOTHER  635 

or  unlawful  imprisonment,"*  in  which  cases  it  is  duress  of  the  per- 
son ;  or  it  may  be  duress  of  goods,  as  where  property  is  wrongfully 
taken  or  withheld  under  oppressive  circumstances.""  Further  than 
this,  "where  money  has  been  obtained  *  *  *  by  any  kind  of  com- 
pulsion or  oppression  sufficient  to  render  the  payment  involuntary," 
it  may  be  recovered  as  a  debt  for  money  received  for  the  use  of  the 
plaintiff."* 

Same — Voluntary  Payment 

If  a  mere  claim  is  made  upon  a  person  without  any  legal  proceed- 
ing, and  he  pays  it  with  full  knowledge  of  all  the  circumstances  of 
the  claim,  and  without  any  compulsion  or  necessity,  the  payment  is 
regarded  as  voluntary,  and  cannot  be  recovered  back,  though  the  claim 
was  unfounded,  and  might  have  been  successfully  resisted."''  It  seems 
that  it  was  at  one  time  held  that  money  voluntarily  paid  could  be  re- 
covered back  if  the  party  receiving  it  was  not  entitled  to  it ;  "^    but 

5  4  Ante,  p.  299.  It  must  be  remembered  that  it  is  unlawful  to  compound  a 
felony,  and  that  money  paid  to  stifle  a  criminal  prosecution  cannot  be  recov- 
ered, ante,  p.  366;  Hayues  v.  lludd,  102  N.  Y.  372,  7  N.  E.  287,  55  Am.  Rep. 
815;  Gotwalt  v.  Neal,  25  Md.  434;  Dixon  v.  Olmstead,  9  Vt.  310,  31  Am.  Dec. 
629;  unless  the  circumstances  were  such  that  the  parties  cannot  be  regarded 
as  being  in  pari  delicto ;  Duval  v.  Wellman,  124  N.  Y.  156,  20  N.  E.  343 ;  ante, 
p.  428.  -See  ''Contracts,"  Dec.  Dig.  (A'ez/-A'o.)  §  95;  Cent.  Dig.  §§  J,31-U0; 
''Payment:'  Deo.  Dig.  (Key-No.)  §  87;    Cent.  Dig.  §§  283-287. 

5  5  Ante,  p.  ;   Hills  v.  Street,  5  Bing.  37;   Astley  v.  Reynolds,  2  Strange, 

915;  Chandler  v.  Sanger,  114  Mass.  364,  19  Am.  Rep.  367;  Cobb  v.  Charter, 
32  Conn.  358,  87  Am.  Dec.  178;  Preston  v.  City  of  Boston,  12  Pick.  (Mass.) 
7;  Parcher  v.  Marathon  Co.,  52  Wis.  388,  9  N.  W.  23,  38  Am.  Rep.  745;  Rob- 
ertson V.  Frank  Bros.  Co.,  132  U.  S.  17,  10  Sup.  Ct  5.  33  L.  Ed.  236 ;  Briggs 
v.  Boyd,  56  N.  Y,  289;  Joannin  v.  Ogilvie,  49  Minn.  564,  52  N.  W.  217,  16  L. 
R.  A.  376,  32  Am.  St.  Rep.  581.  Recovery  of  money  exacted  by  carrier.  Bald- 
win V.  Steamship  Co.,  74  N.  Y.  125,  30  Am.  Rep.  277 ;  Peters  v.  Railroad  Co., 
42  Ohio  St.  275,  51  Am.  Rep.  814 ;  McGregor  v.  Railway  Co.,  35  N.  J.  Law,  89. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  95;   Cent.  Dig.  §§  J^Sl-UO. 

5  6  Leake,  Cont.  52,  and  authorities  there  collected;  Carew  v.  Rutherford, 
106  Mass.  1,  8  Am.  Rep.  287;  Bulow  v.  Goddard,  1  Nott  &  McC.  (S.  C.)  45, 
9  Am.  Dec.  663  ;  Westlake  &  Button  v.  City  of  St,  Louis,  77  Mo.  47,  46  Am. 
Rep.  4 ;  Lehigh  Coal  &  Nav.  Co.  v.  Brown,  100  Pa.  338 ;  Swift  &  Co.  v.  U.  S., 
Ill  U.  S.  22,  4  Sup.  Ct.  244,  28  L.  Ed.  341 ;  Regan  v.  Baldwin,  126  Mass.  485, 
30  Am.  Rep.  689.  Mere  threat  of  suit  is  not  compulsion  so  as  to  render  a 
payment  to  prevent  suit  involuntary.  Emmons  v.  Scudder,  115  Mass.  367 ; 
Await  v.  Association,  34  JId.  435.  See  "Payment,"  Dec.  Dig.  (Key-No.)  §  87; 
Cent.  Dig.  §§  2S3-2S7. 

6T  Leake,  Cont  56;  Spragg  v.  Hammond,  2  Brod.  &  B.  59;  Denby  v.  Moore, 
1  Barn.  &  Aid.  123;  Morris  v.  Tarin,  1  Dall.  147,  1  L.  Ed.  76,  1  Am.  Dec.  233; 
Hall  V.  Shultz,  4  Johns.  (N.  Y.)  240,  4  Am.  Dea  270;  Await  v.  Association,  34 
Md.  435;  remans  v.  Wiley,  92  lud.  436.  -See  "Payment,"  Dec.  Dig.  (Key-No.) 
§  82;   Cent.  Dig.  §§  25J,-2(;G. 

5  8  Moses  v.  Macferlan.  1  W.  Bl.  219.  See  "Payment;'  Dec.  Dig.  (Key-No.)  § 
82;    Cent.  Dig.  §§  25J,-266. 


636  QUASI    CONTRACT  (Ch.  12 

it  is  now  virtually  settled  "that  a  party  may  in  equity  and  good  con- 
science continue  to  hold  money  voluntarily  paid  to  him  under  no  mis- 
take of  fact,  and  without  fraud  upon  his  part."  °* 

Same — Liability  of  Third  Persons 

If  money  wrongfully  obtained  has  passed  into  the  hands  of  a  third 
person,  the  law  will  create  a  similar  promise  by  him,  unless  he  was 
a  bona  fide  purchaser  or  recipient  for  value ;  that  is,  unless  he  gave  a 
valuable  consideration  for  the  money,  and  had  no  notice  of  the  fraud 
or  other  wrong  by  which  it  was  obtained.*"  If  he  was  a  bona  fide 
purchaser  or  recipient,  he  is  not  hable.^^  The  same  is  true  where 
goods  wrongfully  obtained  or  converted  have  passed  into  the  hands 
of  a  third  person,  and  have  been  converted  into  money.®* 

Same — Money  Received  without  Fraud  or  Wrong 

The  right  to  recover  money  as  having  been  received  by  the  defend- 
ant for  the  use  of  the  plaintiff  is  not  limited  to  cases  in  which  the 
money  has  been  obtained  by  a  tortious  act,  but  extends  to  many  cases 
in  which  it  has  been  rightfully  obtained,  but  cannot  be  rightfully 
kept.^^  Where  a  person,  for  instance,  has  obtained  money  from  an- 
other under  an  agreement  which  the  latter  is  entitled  to  avoid,  and 
does  avoid,  because  of  want  or  failure  of  consideration,^*  or  because 
of  mistake,®"*  or  because  of  want  of  capacity  by  reason  of  infancy  or 
insanity,®®  or  because  of  the  other  party's  failure  to  perform  his  part 
of  the  agreement,®^  the  money  may  be  recovered.    The  money,  though 

B8  Brisbane  v.  Dacres,  5  Taunt.  144;  Regan  v.  Baldwin,  126  Mass.  485,  30 
Am.  Rep.  6S9;  Benson  v.  Monroe,  7  Cush.  (Mass.)  125,  54  Am.  Dec.  716.  See 
"raymentr  Dec.  Dig.   (Key-^'o.)  §  S2;   Cent.  Dig.  §§  25Jf-2G6. 

60  Calland  v.  Loyd,  6  Mees.  &  W.  26;  Bayne  v.  U.  S.,  93  U.  S.  G42,  23  L.  Ed. 
997;  Mason  v.  Prendergast,  12D  N.  Y.  536,  24  N.  E.  806;  Atlantic  Cotton  Mills 
V.  Orchard  Mills,  147  Mass.  2GS,  17  N.  E.  496,  9  Am.  St.  Rep.  698;  Hindmaroh  v. 
Hoffman,  127  Pa.  284,  18  Atl.  14,  4  L.  R.  A.  368,  14  Am.  St  Rep.  842;  Harri- 
son Macli.  Works  v.  Coqiiillard,  26  111.  App.  513;  ante,  p.  295.  See  "Money 
Received:'  Dec.  Dig.  (Key-Xo.)  §  9;  Cent.  Dig.  §  SI. 

61  Foster  v.  Green,  7  Hurl.  &  N.  SSI.  And  see  Tbacher  v.  Pray,  113  Mass. 
291,  18  Am.  Rep.  480;  Newhall  v.  Wyatt,  139  N.  Y.  452,  34  N.  E.  1045,  36 
Am.  St.  Rep.  712;  Stephens  v.  Board,  79  N.  Y.  187,  35  Am.  Rep.  511;  State 
Nat  Bank  v.  U.  S..  114  U.  S.  401,  5  Sup.  Ct.  SSS,  29  L.  Ed.  149.  See  "Money 
Received,:'  Dec.  Dig.  (Kcy-'No.)  §  9;   Cent.  Dig.  §  SI. 

62  Glyn  V.  Baker,  13  East  509 ;  Graham  v.  Dyster,  6  Maule  &  S.  1 ;  Down 
V.  Hailing,  4  Barn.  &  a  330.  See  "Money  Received:'  Dec.  Dig.  (Key-Xo.)  §  9; 
Cent.  Dig.  §  SI. 

63  Johnson's  Ex'x  v.  Jennings'  Adm'r,  10  Grat  (Va.)  1,  60  Am.  Dee.  323; 
Schaeffer  v.  Miller,  41  Mont.  417,  109  Pac.  970,  137  Am.  St  Rep.  746.  See 
"Money  Received:'  Dec.  Dig.  (Key-Xo.)  §  6;   Cent.  Dig.  %%  15,  21-27. 

6  4  Post,  p.  640.  *■*  Post  p.  637;    ante,  p.  258. 

66  Ante,  pp.218,  2.T2. 

6T  Philipson  v.  Bates'  Ex'r,  2  JIo.  116,  22  Am.  Dec.  444;  post  P-  C40.  See 
"Money  Paid:'  Dec.  Dig.  (Kcy-Xo.)  §§  6.  15;    Cent.  Dig.  §§  21-27,  U-50. 


§    272)  MONEY    RECEIVED   FOE   THE    USE    OF   ANOTHER  G37 

obtained  without  wrong,  cannot  be  rightfully  and  justly  withheld  after 
the  contract  has  been  avoided,  and  the  law  therefore  creates  an  obli- 
gation to  repay  it. 

Same — Money  Paid  under  a  Mistake  of  Fact 

An  important  class  of  cases  in  which  an  action  will  lie  as  for  money 
received  by  the  defendant  for  the  use  of  the  plaintiff  is  where  money 
is  paid  under  a  mistake  of  fact.  As  a  rule,  whenever  a  person  makes 
a  payment  to  another  under  such  a  mistake  as  to  material  facts  as  to 
create  a  belief  in  the  existence  of  a  liability  to  pay  which  does  not 
really  exist,  the  money  may  be  recovered  back  as  having  been  received 
by  the  person  to  whom  it  was  paid  for  the  use  of  the  person  paying 
it.®^  If  the  mistake  is  caused  by  the  fraud  of  the  person  receiving  the 
money,  or  if  he  knows  of  the  mistake  when  he  receives  the  money, 
the  case  will  fall  within  the  class  which  we  have  already  considered."* 
We  are  speaking  here  of  cases  in  which  the  mistal<e  is  not  induced  by 
fraud,  and  in  which  both  parties  may  act  in  perfect  good  faith.  Such 
an  obligation  arises  where  money  is  paid  as  due  upon  the  basis  of  er- 
roneous accounts,  and  upon  a  true  statement  of  account  is  found  not 
to  have  been  due.  It  may  be  recovered  as  money  received  for  the 
plaintiff's  use.'^°  The  money  must  have  been  paid  under  the  belief 
that  it  was  due.  If  the  plaintiff  knew  that  it  was  not  due,  and  volun- 
tarily paid  it  because  he  thought  he  could  not  show  that  it  was  not  due. 
or  for  any  other  reason,  it  cannot  be  recovered  back.  This  is  not  ig- 
norance of  fact,  but  ignorance  of  the  means  of  proving  a  fact.'^  The 
mere  fact  that  the  party  paying  the  money  suspects  that  it  is  not  due 
does  not  bring  the  case  within  this  rule.     He  must  believe  it  is  not 


«8  Bize  V.  Dickason,  1  Term  E.  285;  Citizens'  Bank  v.  Grafflin.  31  Md. 
507,  1  Am.  Rep.  66;  Barber  v.  Brown,  1  C.  B.  (N.  S.)  121;  J.Iilnes  v.  Dun- 
can. 6  Barn.  &  C.  671 ;  Mills  v.  Guardians  of  the  Poor,  3  Exch.  .500 ;  Jlayer 
V.  City  of  New  York,  63  N.  Y.  455;  Rheel  v.  Hicks,  25  N.  Y.  289;  Hazard 
V.  Insurance  Co.,  7  R.  I.  429;  Holtz  v.  Schmidt,  59  N.  Y.  253;  Clark  v.  Syl- 
vester (Me.)  13  Atl.  404;  McDonald  v.  Lynch,  59  Mo.  3."^0;  Glenn  v.  Shannon, 
12  S.  C.  570.  See  "Payment,"  Dec.  Dig.  i^Key-'So.)  §  85;  Cent.  Dig.  §§  272- 
281. 

60  Sharkey  v.  Mansfield,  90  N.  Y.  227.  43  Am.  Rep.  161.  This  distinction, 
for  several  reasons,  may  become  important.  Where  there  is  no  fi-aud,  for  In- 
etauce,  a  demand  before  suit  is  necessary;  but  where  there  is  fraud  (and  it 
amounts  to  fraud  if  the  other  party  knew  of  the  mistake),  demand  is  not  nec- 
essary. Sharkey  v.  Mansfield,  supra ;  Taylor  v.  Spears,  6  Ark.  381,  44  Am. 
Dec.  519.     See  "Payment,"  Dec.  Dig.  {Key-No.)  §  85;    Cent.  Dig.  §§  272-281. 

■">  Dails  V.  Lloyd,  12  Q.  B.  531;  Townscnd  v.  Crowdy,  8  C.  B.  (N.  S.)  477: 
Stuart  V.  Sears,  119  Mass.  143;  Keenliolts  v.  Church,  57  Hun,  589.  10  N.  Y. 
Supp.  015.     See  "Payment,"  Dec.  Dig.   (Key-No.)  §  85;    Cent.  Dig.  §§  272-2SI. 

71  Keener,  Quasi  Cont.  20;  Wiiidbiel  v.  Carroll,  10  Hun  (N.  Y.)  101.  See 
"Payment,"  Dec.  Dig.  {Key-No.)  §  85;    Cent.  Dig.  §§  272-281. 


G38  QUASI    CONTRACT  (Ch.  12 

due.''  It  is  essential  that  there  shall  have  been  a  mistake  of  a  ma- 
terial fact.  A  voluntary  payment  with  knowledge  of  all  facts  can- 
not be  recovered,  even  though  there  may  have  been  no  obligation  to 
pay.'^. .  By  the  weight  of  authority,  if  the  mistake  occurs  and  causes 
the  payment,  it  is  immaterial  that  it  arose  from  negligence  or  want 
of  diligent  inquiry  on  the  part  of  the  plaintiff,  or  from  forgetfulness, 
or  the  fact  that  he  had  the  means  of  knowledge;''*  provided,  how- 
ever, the  defendant  has  not  so  changed  his  position  that  he  cannot  be 
placed  in  statu  quo.''°  If  the  money  is  intentionally  paid  "without 
reference  to  the  truth  or  falsehood  of  the  fact,  the  plaintiff  meaning 
to  waive  all  inquiry  into  it,  and  that  the  person  receiving  shall  have 
the  money  at  all  events,  whether  the  fact  be  true  or  false,"  it  cannot 
be  recovered.'^®  A  compromise,  therefore,  cannot  be  repudiated,  and 
money  paid  recovered,  on  the  ground  of  mistake,  where  it  was  made 
without  reference  to  the  truth  or  falsity  of  facts.'''  But  it  is  other- 
wise if  there  was  a  mistake  as  to  a  fact  which  was  believed  to  be 
true,  and  on  the  belief  in  the  truth  of  which  the  compromise  was 
made.''* 

7  2  Keener,  Quasi  Cont.  28;  National  Life  Ins.  Co.  v.  Jones,  1  Thomp.  &  C. 
(N.  Y.)  466  [affirmed  59  N.  Y.  649].  See  ''Payment,"  Dec.  Dig.  {Key-^'o.)  § 
8.5;    Cent.  Dig.  §§  272-2S1. 

7  3  Adams  v.  Reeves,  68  N.  C.  134,  12  Am.  Rep.  627;  Lemans  v.  Wiley,  92 
Ind.  436.     See  "Payment;'  Dec.  Dig.   (Key-No.)   §  85;    Cent.  Dig.  §§  272-281. 

7  4  Kelly  V.  Solari,  9  Mees.  &  W.  54;  Appleton  Bank  v.  McGilvray,  4  Gray 
(Mass.)  518,  64  Am.  Dec.  92;  Devine  v.  Edwards,  101  111.  138;  Lawrence  v. 
Bank,  54  N.  Y.  432 ;  Bell  v.  Gardiner,  4  Man.  &  G.  11 ;  Townsend  v.  Crowdy, 
8  C.  B.  (N.  S.)  477;  Waite  v.  Leggett,  8  Cow.  (N.  Y.)  195,  18  Am.  Dec.  441; 
Kingston  Bank  v.  Eltinge,  40  N.  Y.  391,  100  Am.  Dec.  516;  Brown  v.  Road 
Co.,  56  Ind.  110;  Rutherford  v.  Mclvor,  21  Ala.  750;  Baltimore  &  S.  R.  Co. 
V.  Faunce,  6  Gill  (Md.)  68,  46  Am.  Dec.  655;  Koontz  v.  Bank,  51  Mo.  275; 
Walker  v.  Conant,  65  Mich.  194,  31  N.  W.  786;  Citizens'  Bank  v.  Rudisill,  4 
Ga.  App.  37,  60  S.  E.  818.  Contra,  Brummitt  v.  McGuire,  107  N.  C.  351,  12 
S.  E.  191 ;  Wilson  v.  Barker,  50  Me.  447.  See  "Payment,"  Dec.  Dig.  (Key- 
No.)  §  So;   Cent.  Dig.  §§  272-281. 

7  5  Keener,  Quasi  Cont.  71;  Walker  v.  Conant,  65  Mich.  194,  31  N.  W.  786. 
A  change  of  position  which  is  not  irrevocable  does  not  prevent  a  recovery. 
Phetteplace  v.  Bucklin,  18  R.  I.  297,  27  Atl.  211.  See  "Payment,"  Dec.  Dig. 
(Key-No.)  §  85;    Cent.  Dig.  §§  272-281. 

76  Kelly  V.  Solari,  9  Mees.  &  W.  54;  McArthur  v.  Luce,  43  Mich.  435,  5 
N.  W.  451,  38  Am.  Rep.  204;  Mowatt  v.  Wright,  1  Wend.  (N.  Y.)  355,  19 
Am.  Dec.  508;  Buffalo  v.  O'Malley,  61  Wis.  255,  20  N.  W.  913,  50  Am.  Rep. 
137;  Bergenthal  v.  Fiebrantz,  48  Wis.  435,  4  N.  W.  89;  Troy  v.  Bland,  58 
Ala.  197.     -See  "Payment,"  Dec.  Dig.   (Key-No.)   §  85;    Cent.  Dig.  §§  272-281. 

7  7  See  cases  cited  supra,  note  76. 

7  8  Rheel  V.  Hicks,  25  N.  Y.  289;  Wheadon  v.  Olds,  20  Wend.  (N.  Y.)  174; 
Stuart  y.  Sears,  119  Mass.  143.  See  "Compromise  and  Settlement,"  Dec.  Dig. 
(Key-No.)  §  19;  Cent.  Dig.  §§  57-75;  "Payment,"  Dec.  Dig.  (Key-No.)  ^-85; 
Cent.  Dig.  §§  272-281. 


§    272)  MONEY    RECEIVED   FOR   THE    USE   OF   ANOTHER  639 

A  person  cannot  recover  money  paid  under  a  mistake  of  fact  if  he 
has  received  the  equivalent  for  which  he  bargained,  so  that  there  is 
no  failure  of  consideration;  and  it  is  immaterial  that  he  need  not,  and 
would  not,  have  made  the  payment  if  he  had  known  the  true  state  of 
facts.  Where  a  bank,  for  instance,  pays  the  check  of  a  depositor  un- 
der the  erroneous  belief  that  it  has  sufficient  funds,  it  may  not  re- 
cover from  the  payee  the  excess  paid  him  over  the  amount  to  the  de- 
positor's credit.''^  And  it  makes  no  difference  that  because  of  the 
overdraft  it  had  a  right  to  refuse  to  pay  anything  on  the  check.^°  So 
the  drawee  may  not  recover  money  paid  by  mistake  on  a  forged  check 
or  bill  of  exchange.*^ 

In  order  that  money  paid  may  be  recovered  on  the  ground  of  a 
mistake  of  fact,  the  mistake  must  be  as  to  a  fact  material  to  the  legal 
duty  to  pay  or  to  the  legal  right  to  receive  something  in  return ;  and 
it  is  not  sufficient  that  payment  was  made  under  a  mistake  which 
merely  made  it  seem  desirable  or  advantageous  to  pay.** 

Same — Money  Paid  under  a  Mistake  of  Law 

The  rule  was  established  in  England  by  Lord  Ellenborough  in  the 
case  of  Bilbie  v.  Lumley/^  that  money  paid  with  a  full  knowledge 
of  matters  of  fact,  but  under  a  mistake  of  law,  may  not  be  recovered, 
even  though  it  be  inequitable  for  the  defendant  to  retain  it ;  and  this 
rule  has   been   very  generally   recognized   in   this   country.**      It   has 

7  0  Chambers  v.  Miller,  13  C.  B.  N.  S.  125,  32  L.  J.  C.  P.  30,  9  Jur.  N.  S. 
r.26,  11  W.  R.  236,  7  L.  T.  N.  S.  SoG,  84  Rev.  Rep.  479;  Nat.  Bank  v.  Berrall. 
70  N.  J.  Law.  757,  58  Atl.  189,  66  L.  R.  A.  599,  103  Am.  St.  Rep.  821,  1  Ann. 
Cas.  630  (where  payment  had  been  stopped)  ;  Citizens'  Bank  v.  Schwarzs- 
child,  109  Va.  539,  64  S.  E.  954,  23  L.  R.  A.  (N.  S.)  1092  and  note.  See 
"Payment"  Dec.  Dig.  (Key-No.)  §  85;    Cent.  Dig.  §§  212-2S1. 

80  See  cases  cited  supra,  note  79. 

81  Woodward,  Quasi  Cent.  126.  Mistake  as  to  genuineness  of  drawer's  sis- 
nature.  Price  V.  Neal,  3  Burr.  1354.  "The  Doctrine  of  Price  v.  Neal,"  by 
Prof.  J.  B.  Ames,  4  Harv.  Law  Rev.  297.  As  to  indorser's  signature.  La  Fay- 
ette &  Bro.  V.  Merchants'  Bank,  73  Ark.  561,  84  S.  W.  700,  OS  L.  R.  A.  231, 
108  Am.  St  Rep.  71.  As  to  body  of  instrument.  Bank  of  Commence  v.  Un- 
ion Bank,  3  N.  Y.  230.  See  "Banks  and  Banking,"  Dec.  Dig.  (Key-yo.)  §§ 
US,  148;  Cent.  Dig.  §§  J,1J,,  J,38-U6,  517;  "Bills  and  Ifotes,"  Dec.  Dig.  (Key- 
No.)  §  434;  Cent.  Dig.  §§  1268-1274;  "Payment;'  Dec.  Dig.  (Key-No.)  §  85; 
Cent.  Dig.  §§  272-281. 

82  Aiken  v.  Short,  1  Hurl.  &  Nor.  210;  Harris  v.  Loyd,  5  Mees.  &  Wels. 
432 ;  Buffalo  v.  O'Malley,  61  Wis.  255,  20  N.  W.  913,  50  Am.  Rep.  137 ;  Frank- 
lin Bank  v.  Raymond,  3  Wend.  (N.  Y.)  GO.  See  "Payment,"  Dec.  Dig.  (Key- 
No.)  §  85;    Cent.  Dig.  §§  272-281. 

83  2  East,  4G9  (1802).  See  "Payment,"  Dec.  Dig.  (Key-No.)  %  84;  Cent. 
Dig.  §§  267-271. 

8*  Elliott  V.  Swartwout,  10  Pet.  L37,  9  L.  Ed.  373;  Belloff  v.  Dime  Savings 
Bank,  118  App.  Div.  20,  103  N.  Y.  Sup.  273  [affirmed  191  N.  Y.  551,  85  N.  E. 
1106];   Alton  v.  First  Nat.  Bank,  157  Mass.  341,  32  N.  E.  228,  ]8  L.  K.  A.  144. 


GiO  ,       QUASI    CONTRACT  (Ch.  12 

recently  been  severely  criticised,*"  however,  and  has  been  rejected 
by  the  courts  in  at  least  two  jurisdictions/*  and  has  been  modified  by 
statute  in  others.*^ 

There  is  no  presumption  that  a  citizen  of  one  state  knows  the  laws 

of  another  state,  and  accordingly  money  paid  by  a  citizen  of  one  state 

under  a  mistake  as  to  the  laws  of  a  foreign  state  may  be  recovered.*^ 

Same — Want  or  Failure  of  Consideration — Failure  of  Other  Party  to 

Perform 

We  may  class  with  payments  made  under  mistake  payments  which 
are  allowed  to  be  recovered  because  of  want  or  failure  of  considera- 
tion, for  in  all  cases  where  a  recovery  is  allowed  on  this  ground  there 
has  been  a  misapprehension.  The  party  who  has  paid  the  money 
has  not  gotten  what  he  supposed,  or  had  a  right  to  suppose,  he  was 
getting,  or  would  get,  in  return  for  his  money.  Thus,  where  a  person 
bought  a  bar  of  silver  by  weight,  and,  by  an  error  in  assaying  it,  paid 
for  a  greater  weight  than  it  contained,  he  was  allowed  to  recover  the 
excess  from  the  seller  as  money  received  for  his  use.®'  It  needs  no 
argument  to  show  that  this  is  a  case  of  mistake.  In  like  manner,  if 
the  purchaser  of  goods  has  paid  the  price,  and  the  seller  fails  to  de- 
liver the  goods,  the  purchaser  may  reOover  the  money  paid  as  money 

34  Am.  St.  Rop.  285;  Vanderbeck  v.  City  of  Rochester,  122  N.  Y.  285,  25  N. 
E.  408;  Clarke  v.  Butcher,  9  Cow.  (N.  Y.)  G74 ;  Wayne  Co.  v.  Randall,  43 
Mich.  137,  5  N.  W.  75 ;  Birkhauser  v.  Schmitt,  45  Wis.  316,  30  Am.  Rep.  740 ; 
Carson  v.  Cochran,  52  Minn.  67,  53  N.  W.  1130;  Valley  Ry.  Co.  v.  Iron  Co., 
46  Ohio  St.  44,  18  N.  E.  486,  1  L.  R.  A.  412 ;  Beard  v.  Beard,  25  W.  Va.  486, 
-.2  Am.  Rep.  219 ;  Porter  v.  Jefferies,  40  S.  C.  92,  18  S.  E.  229 ;  Mutual  Sav. 
Inst.  V.  Enslin,  46  Mo.  200;  Trigg  v.  Read,  5  Humph.  (Tenn.)  529,  42  Am. 
Dec.  447;  Suelson  v.  State,  16  Ind.  29;  Hubbard  v.  Martin,  8  Yerg.  (Tenn.) 
498;  Real  Estate  Sav.  Inst  v.  Linder,  74  Pa.  371;  Townsend  v.  Cowles,  31 
Ala.  428;  Newell  v.  March,  30  N.  C.  441;  Christy  v.  Sullivan,  50  Cal.  337; 
Osburn  v.  Throckmorton,  90  Va.  311,  18  S.  E.  285 ;  ante,  p.  256.  A  payment 
made  under  a  mistake  both  of  fact  and  of  law  has  been  denied.  Needles  v. 
Burk,  81  Mo.  569,  51  Am.  Rep.  251.  See  "Payment,"  Dec.  Dig.  (Key-No.)  § 
8J,;   Cent.  Dig.  §§  267-271. 

85  Woodward,  Quasi  Cont  57. 

88  Northrop's  Ex'rs  v.  Graves,  19  Conn.  548,  50  Am.  Dec.  264;  McMurtry  v. 
Kentucky  Central  R.  Co.,  84  Ky.  462,  1  S.  W.  815.  See  "Payment,"  Dee.  Dig. 
(Key-No.)  §  S4 ;    Cent.  Dig.  §§  267-271. 

8  7  See  Woodward,  Quasi  Cont.  62,  where  it  is  said  to  have  been  modified 
by  statute  in  California,  Georgia,  Montana,  North  Dakota,  South  Dakota,  and 
Oklahoma.     See  "Payment,"  Dec.  Dig.   (Key-No.)  §  8h'   Cent.  Dig.  §§  267-271. 

88  Haven  v.  Foster,  9  Pick.  (Mass.)  112,  19  Am.  Dec.  353;  Vinal  v.  Conti- 
nental Const.,  etc.,  Co.,  53  Hun,  247,  6  N.  Y.  Snpp.  595.  See  "Payment,"  Dec. 
Dig.  (Key-No.)  §  84;    Cent.  Dig.  §§  267-271. 

89  Cox  V.  Prentice.  3  Maule  &  S.  344.  And  see  Devine  v.  Edwards,  101  111. 
138;  Noyes  v.  Parker,  64  Vt  379,  24  Atl.  12.  See  "Payment,"  Dec.  Dig. 
(Key-No.)  §  85;  Cent.  Dig.  §§  272-281;  "Salej,"  Dec.  Dig.  (Key-No.)  §  391; 
Cent.  Dig.  §§  1110-1127. 


§    272)  MONEY    RECEIVED   FOE   THE   USE    OF   ANOTHER  641 

received  for  his  use.*"  And  in  any  case  where  a  person  has  paid 
money  under  an  agreement  which  he  is  entitled  to  rescind,  and  does 
rescind,  for  want  or  failure  of  consideration,  he  may  recover  what 
he  has  paid.®^  The  action  will  lie,  for  instance,  against  a  person  who 
sells  goods  as  his  own,  but  which  are  not  his  own,  where  the  real 
owner  subsequently  claims  them  from  the  purchaser;  '*  or  against  a 
person  who  sells  bills,  notes,  bonds,  stock,  or  other  securities,  which 
turn  out  to  be  forgeries,  or  for  some  other  reason  to  be  worthless ;  ^^ 
or  against  a  person  who  contracts  to  transfer  the  title  to  land,  ,where 
because  of  his  want  of  title,  or  for  other  reasons,  no  title  passes.^* 

As  a  rule,  the  failure  of  consideration  must  be  total  in  order  to  en- 
title a  person  to  recover  money  paid  under  a  contract.  If  he  has  in 
fact  received  a  part  of  the  consideration,  so  that  the  failure  of  con- 
sideration is  only  partial,  his  remedy,  if  he  has  any,  is  for  breach  of 
the  contract  under  which  the  money  was  paid.®*  This  is  in  accord 
with  the  rule  which  we  have  heretofore  stated — that  money  paid  un- 
der a  mistake  cannot  be  recovered  if  an  equivalent  has  been  received. 
Where  a  specific  article  is  sold  with  a  warranty  of  its  quality,  and  is 
not  altogether  worthless,  a  mere  breach  of  the  warranty  does .  not  en- 
title the.  purchaser  to  recover  the  price  paid.  His  remedy  is  by  ac- 
tion for  damages  for  breach  of  warranty.'®     Where  the  consideration 

9  0  Giles  V.  Edwards,  7  Term  R.  181;  Devaux  v.  Conolly,  8  C.  B.  640.  See 
"Sales,"  Dec.  Dig.   (Key-No.)  §  S91 ;    Cent.  Dig.  §§  1110-1121. 

»i  Claflin  V.  Godfrey,  21  Pick.  (Mass.)  1;  Newsome  v.  Graham,  10  Barn. 
&  C.  234;  Giles  v.  Edwards,  7  Term  R.  181;  Johnson's  Ex'x  v.  Jennings' 
Adm'r,  10  Grat.  (Va.)  1,  60  Am.  Dec.  323;  Earle  v.  Bickford,  6  Allen  (Mass.) 
549,  83  Am.  Dec.  651.  See  "Sales,"  Dec.  Dig.  {Key-No.)  §  391;  Cent.  Dig. 
§§  1110-1127. 

9  2  Elcholz  V.  Bannister,  34  Law  J.  C.  P.  10.5;  ante,  p.  ."86.  See  "Sales," 
Dec.  Dig.  (Key-No.)  §  391;    Cent.  Dig.  §§  1110-1127. 

93  Claflin  V.  Godfrey,  21  Pick.  (Mass.)  1;  Ripley  v.  Case,  86  Mich.  261,  49 
N.  W.  46 ;  Westropp  v.  Solomon,  8  C.  B.  34.5 ;  Jones  v.  Ryde,  5  Taunt.  488 ; 
Gurney  v.  Womersley,  4  El.  &  Bl.  133;  Watson  v.  Cresap,  1  B.  Mon.  (Ky.) 
195,  36  Am.  Dec.  572;  Young  v.  Cole,  3  Blng.  N.  C.  724;  Burchfield  v.  Moore, 
8  El.  &  Bl.  683  ;  Moore  v.  Garwood,  4  Exch.  681 ;  Wood  v.  Sheldon,  42  N.  J. 
Law,  421,  36  Am.  Rep.  523;  ante,  p.  SSH.  See  "Sales,"  Dec.  Dig.  (Key-No.)  § 
391;    Cent.  Dig.  §§  1110-1127. 

9*Cripps  V.  Reade,  6  Term  R.  606;  Schwinger  v.  Hickok,  53  N.  Y.  280; 
Earle  v.  Bickford,  6  Allen  (Mass.)  549,  83  Am.  Dec.  651;  Wright  v.  Dickin- 
son, 67  Mich.  580,  35  N.  W.  164,  11  Am.  St.  Rep.  602.  And  see  McGoreu  v. 
Avery,  37  Mich.  120;  Merryfield  v.  Willson,  14  Tex.  224,  65  Am.  Dec.  117; 
ante,  p.  588.  See  Keener,  Quasi  Cont.  125.  See  "Sales,"  Dec.  Dig.  (Key^ 
Jfo.)  §  391;   Cent.  Dig.  §§  1110-1127. 

90  Hunt  V.  Silk,  5  East,  783;  Rand  v.  Webber,  64  Me.  191;  Blackburn  v. 
Smith,  2  Exch.  783 ;  Harnor  v.  Groves,  15  C.  B.  667 ;  Smart  v.  Gale,  62  N.  H. 
62.     See  "Money  Received,"  Dec.  Dig.  (Key-No.)  %  J,;   Cent.  Dig.  §§  9,  10. 

9«  Gompertz  v.  Denton,  1  Cromp.  &  M.  207.  But  in  those  jurisdictions  In 
which  a  contract  may  be  rescinded  upon  breach  of  warranty,  money  paid 
Clabk  Cont.(3d  Ed.) — 41 


642  QUASI    CONTRACT  (Ch,  12 

is  severable,  however,  so  that  the  money  paid  for  a  portion  of  it  may 
be  ascertained,  a  partial  failure  may  entitle  the  plaintiff  to  recover  the 
part  of  the  money  paid  in  respect  of  that  part  of  the  consideration 
which  has  failed."^ 

A  person  can  never  recover  money  paid  on  the  ground  that  the  con- 
sideration has  failed,  if  he  has  obtained  the  specific  consideration 
which  he  bargained  for,  though  it  may  turn  out  to  be  of  no  value ;  '* 
as,  for  instance,  where  he  has  bought  land  or  goods,  intending  to  take 
his  chances  as  to  the  seller's  title,  or  where  he  has  bought  stock, 
bonds,  or  other  property,  and  taken  the  chance  of  their  being  of  val- 
ue.*'   There  must,  as  we  have  said,  have  been  a  misapprehension. 

Where  the  failure  of  consideration  was  caused  by  the  default  of 
the  plaintiff,  he  cannot  recover  the  money  paid  for  it.^ 

Same — Money  Paid  under  Unenforceable  Contract 

Money  paid  under  an  agreement  unenforceable  because  of  the  stat- 
ute of  frauds  may  be  recovered  upon  the  default  of  the  defendant  in 
the  performance  of  his  part  of  the  agreement ;  ^  but,  by  the  weight 
of  authority,  it  may  not  be  recovered  so  long  as  the  defendant  is  not 
in  default.' 
Same — Money  Paid  under  Illegal  Contract 

Though,  as  we  have  seen,  no  action  will  lie  to  enforce  an  illegal  con- 
tract, an  action  will  be  allowed,  under  some  circumstances,  in  disaf- 
firmance of  it.  Ordinarily,  where  one  of  the  parties  has  paid  money 
.under  an  illegal  contract,  he  cannot  sue  to  recover  it  back.  The  law 
will  leave  him  where  he  has  placed  himself.*    To  this  rule,  as  we  have 

may  be  recovered  upon  return  of  the  consideration  as  to  which  the  warranty- 
was  broken.  See  ante,  p.  581.  See  "Sales,"  Dec.  Dig.  (Key-No.)  §  301;  Cent. 
Dig.  §§  1110-1121. 

»7  Devaux  v.  Conolly,  8  C.  B.  640;  Goodspeed  v.  Fuller,  46  Me.  141,  71  Am. 
Dec.  572;  Laflin  v.  Howe,  112  111.  253.  See  "Sales,"  Dec.  Dig.  {Key-No.)  § 
391;    Cent.  Dig.  §§  1110-1127. 

«8Westlake  v.  Adams,  5  C.  B.  (N.  S.)  2GG;  Taylor  v.  Hare,  1  Bos.  &  P. 
(N.  R.)  2G0;  Lambert  v.  Heath,  15  Mees.  &  W.  486;  ante,  p,  586.  See  "Mon- 
ey Received,"  Dec.  Dig.  (Key-No.)  §  4;   Cent.  Dig.  §§  9,  10. 

8  9  Morley  v.  Attenborough,  3  Exch.  500;  Lambert  v.  Heath,  15  Mees.  &  W. 
486;  Westlake  v.  Adams,  5  C.  B.  (N.  S.)  2G6.  See  "Money  Received,"  Dec. 
Dig.  (Key-No.)   §  4;    Cent.  Dig.  §§  9,  10. 

1  Stray  v.  Russell,  1  El.  &  El.  8SS,  916.  See  "Money  Received,"  Dec.  Dig. 
(Key-No.)  §  4;  Cent.  Dig.  §§  9,  10. 

2  Richards  v.  Allen,  17  Me.  296;  Durham  v.  Wick,  210  Pa.  128,  59  Atl.  824, 
105  Anu  St.  Rep.  789,  2  Ann.  Cas.  929.  See  "Frauds,  Statute  of,"  Dec.  Dig. 
(Key-No.)  §  1S8;   Cent.  Dig.  §§  327-333. 

3  Thomas  v.  Brown,  1  Q.  B.  D.  714;  York  v.  Washburn  (C.  C.)  118  Fed. 
316;  McKinney  v.  Harvie,  38  Minn.  18,  35  N.  W.  6G8.  8  Am.  St.  Rep.  640. 
Contra,  King  v.  Welcome,  5  Gray  (Mass.)  41.  See  "Frauds,  Statute  of,"  Dec. 
Dig.  (Key-No.)  §  138;   Cent.  Dig.  §§  327-333. 

*Holman  v.  Johnson,  1  Cowp.  341;   Touro  v.  Cassin,  1  Mott  &  McC.   (S.  C.) 


§    272)  MONEY   RECEIVED   FOE   THE    USE    OF    ANOTHER  643 

seen,  there  are  some  exceptions.  Where  the  contract  is  still  executory, 
except  for  a  payment  of  money  made  by  one  of  the  parties  to  the 
other,  and  is  not  of  such  a  character  that  the  illegal  object  is  effected 
by  the  mere  payment,  and  is  malum  prohibitum,  and  not  malum  in  se, 
there  is  a  locus  poenitentise,  and  the  party  who  has  paid  the  money 
may  withdraw  from  the  contract,  and  recover  what  he  has  paid  as 
money  received  for  his  use.°  The  law  creates  a  quasi  contractual 
obligation,  on  the  part  of  the  party  who  has  received  the  money,  to 
repay  it.  Another  exception  is  where  the  parties  are  not  in  pari  de- 
licto. Where  the  party  who  has  paid  money  under  an  illegal  contract 
entered  into  the  contract  under  the  influence  of  fraud  or  strong  pres- 
sure, or  where  the  law  which  makes  the  contract  unlawful  was  in- 
tended for  his  protection,  he  is  not  regarded  as  being  in  pari  delicto 
with  the  other  party,  and  may  recover  what  he  has  paid.® 

Same — Money  Paid  under  Ultra  Vires  Contract 

A  contract  made  by  a  corporation  beyond  the  scope  of  its  corporate 
powers  is  said  to  be  ultra  vires,  and  is  void,  but  not  illegal.'^  It  is 
very  generally  held,  therefore,  that  money  paid  under  such  a  contract 
may  be  recovered.^  In  England  an  exception  is  made  to  the  right  of 
recovery  in  the  case  of  money  borrowed  by  the  corporation  unless  it 
remains  unused  in  its  treasury,  on  the  ground  that  to  permit  a  recov- 
ery in  this  case  would  be  to  enforce  the  void  contract  of  loan ; '  but 
this  exception  is  not  recognized  by  the  United  States  Supreme  Court,^" 
nor  by  the  majority  of  the  state  courts. ^^ 

173,  9  Am.  Dec.  680;  Waite  v.  Merrill,  4  Greenl.  (Me.)  102,  16  Am.  Dec.  238; 
ante,  p.  423.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  138;  Cent.  Dig.  §§  681- 
100. 

6  Ante,  p.  428.  See,  also,  Bernard  v.  Taylor,  23  Or.  416,  31  Pac.  9GS,  18  L. 
R.  A,  859,  37  Am.  St.  Rep.  693 ;  Hermann  v.  Charlesworth,  [1905]  2  K.  B.  123, 
74  Law  J.  'k.  B.  620,  93  Law  T.  284,  54  Wkly.  Rep.  22,  21  Times  Law  R.  368. 
See  "Contracts,"  Dec.  Dig.  (Key-No.)  §  138;  Cent.  Dig.  §§  681-100. 

e  Ante,  p.  425. 

T  Central  Transp.  Co.  t.  Pullman's  Palace  Car  Co.,  1.39  U.  S.  24,  11  Sup.  Ct. 
478,  35  L.  Ed.  55.  And  see  ante,  p.  428.  See  "Payment,"  Dec.  Dig.  (Key-No.) 
§  82;   Cent.  Dig.  §§  25J,-266. 

8  In  re  Phoenix  Life  Assurance  Co.,  2  Johns.  &  Hem.  411 ;  Pullman's  Palace 
Car  Co.  V.  Central  Transp.  Co.,  171  U.  S.  138.  18  S.  Ct.  808.  43  L.  Ed.  108; 
Northwestern  Union  Packet  Co.  v.  Shaw,  37  Wis.  655,  19  Am.  Rep.  781.  See 
'•Corfionitions,"  Dec.  Dig.  (Key-No.)  §  .'///<?;  Cent.  Dig.  §  1785;  "Payment," 
Dec.  Dig.  (Key-No.)  §  82;  Cent.  Dig.  §§  25.',-206. 

»  Chambers  v.  Railroad  Co.,  5  Barn.  &  Cres.s.  588;  In  re  Wrexham,  etc.,  R. 
Co.,  [1899]  1  Ch.  440.  See  "Corporations,"  Dec.  Dig.  (Key-No.)  §  4.'/G;  Cent. 
Dig.  §  1185. 

10  Aldrich  v.  Chemical  Nat  Bank,  176  U.  S.  618,  20  Sup.  Ct.  498,  44  L.  Ed. 
611.    See  "Corporations,"  Dec.  Dig.  (Key-No.)  §  >J-}6;    Cent.  Dig.  §  1185. 

11  Woodward,  Quasi  Cont.  255.     Money  borrowed  by  a  municipal  corpora- 


644  QUASI   CONTRACT  (Ch.  12 


RECOVERY  FOR  BENEFITS  CONFERRED 

273.  Under  certain  circumstances,  where  one  person  has  conferred 
upon  another  benefits  in  the  way  of  property,  services, 
etc.,  and  cannot  show  a  promise  in  fact  by  the  latter  to 
pay  for  them,  the  law  will  create  an  obligation,  because  of 
the  receipt  of  the  benefits,  to  pay  what  they  are  reasona- 
bly worth. 

As  we  have  seen,  if  a  man  delivers  goods  to  another,  or  performs 
services  for  him,  not  under  such  circumstances  as  to  lead  the  latter  to 
believe  them  a  gift,  and  the  latter  accepts  them  or  acquiesces,  a  prom- 
ise to  pay  for  them  v^ill  be  implied  as  a  fact.  Here  there  is  a  true 
contract  shown  by  the  conduct  of  the  parties.  Goods  may  be  deliv- 
ered, however,  or  services  rendered,  under  circumstances  showing  that 
there  is  no  agreement  in  fact,  or  that,  though  there  was  an  agree- 
ment, a  condition  has  not  been  performed  by  one  of  the  parties  so  as 
to  entitle  him  to  sue  the  other  on  it,  or  for  some  reason  it  is  unen- 
forceable, or  is  illegal.  Under  these  circumstances  the  law  will  some- 
times create  an  obligation  to  pay  for  the  goods  delivered  or  services 
rendered.^*  There  has,  in  these  cases,  been  an  agreement  in  fact, 
which  for  some  reason  will  not  support  an  action,  and  the  goods 
have  been  delivered,  or  the  services  rendered,  under  this  agreement. 
It  needs  no  argument  to  show  that  you  cannot  imply  as  a  fact  any 
other  promise  to  pay  than  the  unenforceable  promise  proved  to  have 
been  made.  The  question  is  one  of  evidence,  and  the  promise  shown 
to  have  been  made  in  fact  prevents  the  implication  of  any  other  prom- 
ise in  fact.  Any  implied  promise  to  pay  must  be  implied  as  a  matter 
of  law,  or  created  by  the  law,  and  must  therefore  be  quasi  contractual, 
and  not  contractual.  We  cannot  go  at  much  length  into  the  various 
circumstances  under  which  such  a  promise  will  be  created,  but  will 
mention  some  of  the  most  important. 

Same — Liability  for  Necessaries 

We  have  seen  that,  though  an  infant  or  an  insane  or  drunken  person 
is  ordinarily  incapable  of  making  a  contract  which  will  bind  him,  he 
is  liable  for  necessaries  furnished  him.    He  is  not  liable  for  what  he 

tion  ultra  vires  may  not  be  recovered,  If  such  recovery  would  Increase  the 
burden  of  taxation.     Id.  258. 

12  Van  Deusen  v.  Blum,  18  Pick.  (Mass.)  229,  29  Am.  Dea  582;  Turner  v. 
Webster,  24  Kslu.  38,  36  Am.  Rep.  251.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  i 
27;  Cent.  Dig.  §  122;  "Sales,"  Dec.  Dig.  (Key-No.)  §  360;  Cent.  Dig.  §§  1060- 
1062. 


§    273)  KECOVERY    FOE    BENEFITS    CONFERRED  645 

may  have  agreed  to  pay  for  them,  but  only  for  what  they  are  worth. 
It  would  seem  from  this  that  the  promise  is  one  created  by  law,  and 
therefore  quasi  contractual.^'  To  so  regard  it  would  make  the  law 
more  consistent.  It  does  not  seem  consistent  to  say  that  because  of 
the  immature  judgment  of  an  infant,  or  because  of  the  diseased  mind 
of  a  lunatic,  he  cannot  consent,  and  therefore  cannot  enter  into  a  bind- 
ing agreement,  and  to  say  in  the  next  breath  that  he  may  bind  him- 
self for  necessaries.  It  is  better  to  say  that  the  law  makes  him  liable 
for  necessaries.  As  we  have  seen,  however,  many  of  the  courts  re- 
gard the  liability  as  based  upon  the  express  promise.  They  allow  an 
action,  for  instance,  on  a  note,  or  other  express  promise,  given  for 
necessaries,  provided  it  is  such  that  the  consideration  may  be  inquired 
into,  so  that  the  recovery  may  be  limited  to  what  the  necessaries  are 
reasonably  worth. ^* 

We  have  also  seen  that,  where  a  husband  leaves  his  wife  without 
means  of  support,  the  law  gives  her  authority  to  pledge  his  credit  to 
obtain  necessaries.  Not  only  is  this  true,  but  the  law  will  hold  a  hus- 
band liable  in  assumpsit  for  necessaries  furnished  his  abandoned  wife 
while  she  is  unconscious,  and  will  hold  an  insane  or  infant  husband 
liable  for  necessaries  furnished  his  wife.  The  liability  thus  imposed 
upon  the  husband  is  imposed  by  law  without  his  consent,  and  is  clearly 
quasi  contractual.^*  Under  like  circumstances  a  man  may  be  liable 
for  necessaries  furnished  his  children.^* 

Same — Forcing  Benefit  upon  Another 

Neither  a  liability  ex  contractu  nor  a  liability  quasi  ex  contractu  can 
be  imposed  upon  a  person  otherwise  than  by  his  act  or  consent.  One 
man  cannot  force  a  benefit  upon  another  without  his  knowledge  or 
consent,  and  then  compel  him  to  pay  for  it.^'^  If  a  person  intention- 
ally and  knowingly  performs  services  for  another,  or  otherwise  con- 
is  Keener,  Quasi  Cont.  20;  ante,  p.  199;  Rhodes  v.  Rhodes,  44  Ch.  Div. 
94 ;  Sceva  v.  True,  58  N.  H.  627 ;  Trainer  v.  Trumbull.  141  Mass.  527,  6  N. 
E.  761;  Gay  v.  Ballou,  4  Wend.  (N.  Y.)  403,  21  Am.  Dec.  158;  Earle  v.  Reed, 
10  Mete.  (Mass.)  387.  See  "Infants,"  Dec.  Dig.  (Key-No.)  §  50;  Cent.  Dig. 
§§  11J,-121;  "Insane  Persont,"  Dec.  Dig.  (Key-'No.)  §  75;  Cent.  Dig.  §§  89, 
128,  129. 

14  Ante,  p.  199. 

15  Ante,  p.  199;  Cunningham  v.  Reardon,  98  Mass.  538.  96  Am.  Dec.  670; 
Chappie  V.  Cooper,  13  Mees.  &  W.  252;  Turner  v.  Frisby,  1  Strange,  168.  See 
"Hushand  and  Wife,"  Dec.  Dig.  (Key-No.)  §  19;  Cent.  Dig.  §§  in9-lJ,6. 

18  Gilley  v.  Gilley,  79  Me.  292,  9  Atl.  623,  1  Am.  St.  Rep.  307;  Van  Valkin- 
burgh  V.  Watson,  13  Johns.  (N.  Y.)  480,  7  Am.  Dec.  395;  People  v.  Moore-s 
4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272;  In  re  Ryder,  11  Paige  (N.  Y.)  185,  42 
Am.  Dec.  109.  But  see  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499.  Bee 
"Pannt  and  Child,"  Dec.  Dig.  (Key-No.)  §  5;    Cent.  Dig.  §§  53-62. 

IT  Ante,  p.  4-10. 


646  QUASI    CONTRACT  (Ch.  12 

fers  a  benefit  upon  him,  without  his  knowledge,  so  that  he  has  no 
opportunity  to  refuse  the  benefit,  the  law  will  not  create  a  liability 
to  pay  for  it.^'  So,  where  a  person  supplies  another  with  goods,  the 
latter  supposing  that  he  is  being  supplied  by  another  person  with 
whom  he  has  contracted  for  the  goods,  the  law  not  only  will  not  im- 
ply a  promise  in  fact  to  pay  for  the  goods,  but  it  will  not  even  create 
a  promise.^* 

Same — Benefits  Rendered  Gratuitously 

If  benefits  are  conferred  gratuitously,  the  law  will  not  create  a 
promise  to  pay  for  them,  even  though  they  may  have  been  request- 
ed.^" A  person,  for  instance,  who  has  rendered  services  for  another 
in  the  absence  of  any  intention  of  charging  for  them  on  the  one  side. 
Dr  of  paying  for  them  on  the  other,  cannot  afterwards  recover  for 
them.^^  Where  necessaries  are  furnished  to  an  infant,  or  an  uncon- 
scious person,  with  the  intention  of  charging  for  them,  the  law,  as 
we  have  seen,  will  create  a  promise  to  pay  their  reasonable  value. 
Where,  however,  there  is  no  intention  at  the  time  to  charge  for  the 
necessaries  furnished,  the  law  will  not  create  a  liability.^^ 

Same — Goods  Wrongfully  Obtained — Waiver  of  Tort 

We  have  seen  that,  where  goods  are  wrongfully  obtained  and  con- 
verted into  money,  an  action  will  lie  by  the  owner  to  recover  the  mon- 
ey received  as  money  received  for  his  use.  Such  an  action  does  not 
lie  where  the  goods  are  retained  by  the  wrongdoer,  and  not  sold.  As 
to  whether,  in  such  a  case,  the  owner  must  sue  in  tort,  as  he  may 
do,  of  course,  or  whether  he  may  waive  the  tort,  and  sue  in  assumpsit 
for  the  value  of  the  goods  as  upon  a  fictitious  sale,  the  authorities 

18  Bartholomew  v.  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am.  Dec.  237;  Dunbar 
V.  Williams,  10  Johns.  (N.  Y.)  249;  Glenn  v.  Savage,  14  Or.  5G7,  13  Pac.  442; 
Earle  v.  Coburn,  130  Mass.  59G;  Shaw  v.  Graves,  79  Me.  1G6,  8  Atl.  884.  See 
"Contracts,"  Deo.  Dig.  {Key-'No.)  §  27;   Cent.  Dig.  §§  121-1S2. 

19  BOSTON  ICE  CO.  v.  POTTER,  123  Mass.  28,  25  Am.  Rep.  9,  Throckmor- 
ton Cas.  Contracts,  305;  Schmaling  v.  Thomlinson,  6  Taunt  147.  See  "Con- 
tracts,"  Dec.  Dig.  (Key-No.)  §  27;   Cent.  Dig.  §§  121-132. 

20  Disbrow  v.  Durand,  54  N.  J.  Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678; 
Brown  v.  Tuttle,  80  Me.  162,  13  Atl.  583 ;  Cooper  v.  Cooper,  147  Mass.  370,  17 
N.  E.  892,  9  Am.  St.  Rep.  721 ;  Doyle  v.  Trinity  Church,  133  N.  Y.  372,  31  N. 
E.  221;  Patterson  v.  Collar,  31  111.  App.  340;  Collar  v.  Patterson,  137  111. 
40:j.  27  N.  B.  604;  ante,  p.  50.  See  "Contracts,"  Dec.  Dig.  {Key-No.)  §  27; 
Cc7it.  Dig.  §§  121-1S2. 

21  Cicotte  V.  Church  of  St  Anne,  60  Mich.  552,  27  N.  W.  682.  See  "Con- 
tracts," Dec.  Dig.  (Key-No.)  §  27;  Cent.  Dig.  §§  121-1S2. 

22  St  Joseph's  Orphan  Society  v.  Wolpert'80  Ky.  86;  Shepherd  v.  Young,  8 
Gray  (Mass.)  152,  69  Am.  Dee.  242.  See  "Contracts,"  Dec.  Dig.  (Key-No.)  S 
27;   Cent.  Dig.  §§  121-132. 


§    273)  EECOVERY    FOE    BENEFITS    CONFERRED  647 

are  conflicting.     Some  courts  allow  such  an  action,^ ^  while  others  do 
not.2* 

Same — Part  Performance  of  Contract 

As  we  have  seen  in  treating  of  discharge  of  contract  by  breach,  a 
party  to  a  contract  is  not  discharged  from  liability  to  perform  by  the 
failure  of  the  other  party  to  perform  a  part  of  his  promise  which  is 
merely  subsidiary,  and  does  not  go  to  the  essence  of  the  contract ;  nor, 
where  a  contract  consists  of  several  promises  based  on  several  con- 
siderations, so  that  the  promises  are  divisible,  does  a  failure  to  per- 
form one  or  more  discharge  the  other  party  from  liability  to  pay  for 
those  that  have  been  performed.  In  these  cases  the  party  thus  par- 
tially in  default  may  recover  for  what  he  has  done,  leaving  the  other 
party  to  recover  damages  from  him  for  his  partial  breach.  The  re- 
covery is  on  the  contract  itself.  Where,  however,  the  breach  is  not 
merely  of  a  subsidiary  promise,  or  of  one  or  more  of  several  prom- 
ises, but  of  a  term  which  the  parties  regarded  as  of  the  essence  of 
the  contract,  or  there  is  a  failure  to  fully  perform  an  indivisible  prom-  • 
ise,  the  question  arises  whether  the  other  party  is  liable  for  the  ben- 
efits he  has  received  from  the  partial  performance.  That  he  is  not 
liable  on  the  contract  itself  is  clear,  for  he  can  only  recover  on  it  by 
showing  that  he  has  substantially  performed  what  he  has  agreed  to 
perform  as  a  condition  precedent  to  the  other's  liability.  The  other 
party  has  not  agreed  to  pay  him  for  a  partial  performance,  and  any 
liability  must  be  created  by  the  law  without  agreement,  or  quasi  ex 
contractu. 

Under  certain  circumstances  such  a  liability  is  created.  The  right 
to  recover  is  based,  not  on  principles  of  the  law  of  contract,  but  on 
equitable  principles;  and  it  would  be  beyond  the  scope  of  our  work 
to  go  into  the  subject  at  any  length.  It  must  suffice  to  call  attention 
to  a  few  of  the  most  important  cases  in  which  such  a  recovery  has 
been  allowed.  Where  a  person  has  willfully  refused  or  failed  to  fully 
perform  a  contract  which  he  was  bound  to  perform,  it  is  clear  that 
he  should  not,  and  cannot,  recover,  for  what  he  has  performed  un- 

23  Russell  V.  Bell,  10  Mees.  &  W.  340;  Willson  v.  Foree,  6  Johns.  (N.  Y.) 
110,  5  Am.  Dec  195;  Toledo,  W.  &  W.  Ry.  Co.  v.  Chew,  67  111.  378;  Aldine 
Mfg.  Co.  V.  Barnard,  84  Mich.  632,  48  N.  W.  2S0 ;  Goodwin  v.  GrifBs,  88  N.  Y. 
629 ;  Walker  v.  Duncan,  68  Wis.  624,  32  N.  W,  6S9 ;  Lehmann  v.  Schmidt,  87 
Cal.  15,  25  Pac.  161 ;  Blalock  v.  Phillips,  38  Ga.  216 ;  Dietz's  Assignee  v.  Sut- 
cliffe,  80  Ky.  650 ;  Morford  v.  White,  53  Ind.  547 ;  Newton  Mfg.  Co.  v.  White, 
53  Ga.  395 ;  Evans  v.  Miller,  58  Miss.  120,  38  Am.  Rep.  313 ;  Logan  v.  Wallis, 
76  N.  C.  416.  See  ''Action,"  Dec.  Dig.  (Key-No.)  §  28;  Cent.  Dig.  §§  196-215; 
"Asaumpsit,"  Cent.  Dig.  §§  Ji2-54. 

24  Jones  V.  Hoar,  5  Pick.  (Mass.)  285;  Allen  v.  Ford,  19  Pick.  (Mass.)  217; 
Androscoggin  Water  Power  Co.  v.  Metcalf,  65  Me.  40 ;  Bethlehem  Borougli  v. 
Fire  Co.,  81  Pa.  445;    Sandeen  v.  Railroad  Co.,  79  Mo.  278;    Galloway-   v. 


04:8  QUASI    CONTRACT  (Ch.  12 

der  it."  If  his  default  was  not  willful,  but  because  of  sickness,  death, 
prevention  by  the  other  party,  or  any  other  cause,  not  arising  from 
his  own  fault,  and  excusing  the  breach,  then  he  can  recover  from  the 
other  party  on  a  promise  created  by  the  law  to  pay  for  the  benefits 
he  has  received  from  the  part  performance."  And,  by  the  weight  of 
authority,  where  one  of  the  parties  to  a  contract  has  endeavored  in 
good  faith  to  perform  it,  and  has  substantially  done  so,  and  thereby 
conferred  a  substantial  benefit  on  the  other  party,  though  he  has 
failed  to  perform  the  contract  in  some  particulars,  he  may  recover 
what  the  partial  performance  is  reasonably  worth,  having  regard, 
however,  to  the  contract  price."  In  England,  and  in  some  jurisdic- 
tions in  this  country,  a  recovery  is  not  allowed  for  improvements  on 
a  building  which  is  destroyed  without  fault  of  the  contractor  before 
the  completion  of  the  contract ;  "  but  by  the  weight  of  American 
authority  recovery  may  be  had  in  such  a  case  for  the  value  of  the 
work  performed.'^' 

Holmes,  1  Doug.  (Micli.)  330  (but  see  Aldlne  Mfg.  Co.  v.  Barnard,  84  Mich. 
G32,  48  N.  W.  280)  ;  Winchell  v.  Noyes,  23  Vt.  303 ;  Strother's  Adm'r  v.  Butler, 
17  Ala.  733 ;  Ferguson  v.  Carrington,  9  Barn.  &  C.  59.  But  see  Russell  v.  Bell, 
10  Mees.  &  W.  340.  See  "Action,"  Dec.  Dig.  (Key-Mo.)  {  28;  Cent.  Dig.  §§ 
196-215:   "Assumpsit."  Cent.  Dig.  §§  .',2-54. 

2  5  Ante,  pp.  539,  578,  579,  and  cases  cited  in  notes  19,  20;  Carbon  Hill 
Coal  Co.  V.  Cunningham,  153  Ala.  573,  44  South.  1016.  See  "Work  and  Labor" 
Dec.  Dig.  (Key-No.)  §§  9,  IJ,;  Cent.  Dig.  §§  23-33. 

2  0  Wolfe  V.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388;  Robinson  v.  Davi-son, 
L.  R.  6  Exch.  269 ;  Boast  v.  Firth,  L.  R.  4  C.  P.  1 ;  Spalding  v.  Rosa,  71  N, 
Y.  40,  27  Am.  Rep.  7 ;  Jones  v.  Judd,  4  N.  Y.  412 ;  Lakeman  v.  Pollard,  43 
Me.  463,  69  Am.  Dec.  77 ;  Green  v.  Gilbert,  21  Wis.  395 ;  Clark  v.  Gilbert,  26 
N.  Y.  279,  84  Am.  Dec.  189 ;  Martus  v.  Houck,  39  Mich.  431,  33  Am.  Rep.  409 ; 
Jennings  v.  Lj'ons,  39  Wis.  553,  20  Am.  Rep.  57 ;  Pinches  v.  Lutheran  Church, 
55  Conn.  183,  10  Atl.  264;  Shultz  v.  Johnson,  5  B.  Mon.  (Ky.)  497;  Adams 
V.  Crosby,  48  Ind.  153 ;  Harrington  v.  Iron-Works  Co.,  119  Mass.  82 ;  Stew- 
art V.  Loring,  5  Allen  (Mas.s.)  300,  81  Am.  Dec.  747 ;  Fuller  v.  Brown,  11  Mete. 
(Mass.)  440;  Hayward  v.  Leonard,  7  Pick.  (Mass.)  181,  19  Am.  Dec.  268: 
Scully  V.  Kirkpatrick,  79  Pa.  324,  21  Am.  Rep.  62;  Allen  v.  Baker,  86  N.  C.  91, 
41  Am.  Rep.  444;  Gilman  v.  Hall,  11  Vt  510,  34  Am.  Dec.  700;  Fenton  v. 
Clark,  11  Vt.  557 ;  Hubbard  v.  Belden,  27  Vt.  645 ;  Yerrington  v.  Green,  7  R. 
I.  589,  84  Am.  Dec.  578 ;  Norris  v.  School  Dist.,  12  Me.  293,  28  Am.  Dec.  182 ; 
Wadleigh  v.  Town  of  Sutton,  6  N.  H.  15,  23  Am.  Dec.  704 ;  Mooney  v.  Iron  Co., 
82  Mich.  263,  46  N.  W.  376 ;  Parker  v.  Macomber,  17  R.  I.  674,  24  Atl.  464,  16 
L.  R.  A.  858;  ante,  p.  586.  See  "Work  and  Laior,"  Dec.  Dig.  (Key-No.)  %  9; 
Cent.  Dig.  §§  23-33. 

2T  Ante,  p.  .".39. 

28  Appleby  v.  Myers,  L.  R.  2  C.  P.  651;  Huyett  Mfg.  Co.  v.  Chicago  Edison 
Co.,  167  111.  233,  47  N.  E.  384,  59  Am.  St.  Rep.  272 ;  Krause  v.  Bd.  of  Trustees, 
162  Ind.  278,  70  N.  E.  264,  65  L.  R.  A.  Ill,  102  Am.  St.  Rep.  203,  1  Ann.  Cas. 
460.     See  "Work  and  Lahor,"  Dec.  Dig.  (Key-No.)  §  14;    Cent.  Dig.  §§  23-33. 

2»  Young  V.  City  of  Chicopee,  186  Mass.  518,  72  N.  E.  63;  Hayes  v.  Gross,  9 
App.  Div.  12,  40  N.  Y.  Supp.  1098  [affirmed  162  N.   Y.  610,   57  N.  E.  1112]; 


§  273)  RECOVERY  FOR  BENEFITS  CONFERRED  649 

If,  by  the  express  terms  of  the  contract,  there  is  no  liability  except 
upon  a  full  performance,  there  can  be  no  recovery  for  a  part  perform- 
ance, even  where  the  contract  is  divisible,  and  a  full  performance  is 
prevented  by  death  or  other  cause  beyond  the  control  of  the  parties. 
The  terms  of  the  express  contract  exclude  the  arising  of  any  such  im- 
plied contract  as  could  form  the  basis  of  a  claim  upon  a  quantum 
meruit."" 

Same — Retaining  Benefits 

Where  benefits  are  conferred  by  one  person  on  another  under  such 
circumstances  as  to  raise  no  promise  in  fact  or  in  law  to  pay  for  them, 
he  may  nevertheless  become  liable  by  retaining  them.  If  a  person, 
for  instance,  were  to  receive  goods  from  another,  reasonably  but  mis- 
takenly believing  them  to  be  intended  as  a  gift,  and,  after  learning  of 
his  mistake,  should  retain  them,  when  he  might  return  them,  or,  by 
the  weight  of  authority,  if  he  should  receive  part  of  the  goods  pur- 
chased from  another,  and  retain  them  after  failure  of  the  latter  to 
supply  the  rest  of  the  goods,  the  law  would  compel  him  to  pay  for 
them.'^  And  the  same  rule  would  apply  where  benefits  are  in  any  other 
way  received  under  such  circumstances  as  to  create  no  contractual  obli- 
tion,  and  are  retained  when  they  should  in  justice  be  returned.  If, 
however,  the  benefits  thus  received  are  incapable  of  being  returned,  as 
where  they  consist  of  services,  or  of  material  which  has  been  used 
in  repairing  a  house,"  it  would  seem  that  no  liability  should  be  cre- 
ated. If  a  man  engages  a  servant  for  a  specified  time,  and  agrees  to 
pay  him  if  he  works  for  that  time,  his  rendition  of  the  services  is  a 
condition  precedent  to  his  right  to  recover  for  them  on  the  contract. 
If  he  leaves  his  employer's  service,  without  excuse,  before  the  time 
has  expired,  he  certainly  cannot  recover  on  the  contract  without  a  vio- 
lation of  the  plainest  principles  of  the  law  of  contract.  The  master 
cannot  return  the  benefit  he  has  received  from  the  part  performance, 
and  he  should  not  be  held  liable  to  pay  for  it.  Some  courts  allow  the 
servant  to  recover  on  the  quantum  meruit,  though  he  has  broken  his 
contract  without  excuse.  The  weight  of  authority,  however,  is  to 
the  contrary.^^ 

Ganong  &  Chenoweth  v.  Brown,  88  Miss.  53,  40  South.  556,  117  Am.  St.  Rep. 
731,     See  "Work  and  Labor,"  Dec.  Dig.  (Eey-JS'o.)  §  1^;    Cent.  Dig.  §§  2S-S3. 
30  Cutter  V.   Powell,  6  Term  R.  320 ;    Appleby   v.   Dods,  8  East,  300.     Bee 
"Work  and  Labor,''  Dec.  Dig.  (Key-No.)  §  9;   Cent.  Dig.  §§  23-33. 

81  Oxendale  v.  Wetherell,  9  B.  &  C.  2SG,  and  cases  cited,  ante,  p.  568,  note 
feO.     But  see,  contra,  Cliamplin  v.  Rowley,  IS  Wend.   (X.   Y.)   187,  and  cases 
cited,  ante,  p.  5G8,  note  SO.     See  "Contracts,"  Dec.  Dig.  (Key-No  )  §  27  •    Cent 
Dig.  §§  121-132.  .  • 

82  Ante,  p.  540,  »»  Ante,  p.  579. 


G50  QUASI    CONTRACT  (Cll.  12 

Same — Part  Performance  of  Illegal  Contract 

Difficult  questions  have  arisen  where  it  has  been  sought  to  recov- 
er for  benefits  conferred  under  an  illegal  contract.  We  have  already 
seen  that  an  action  for  money  had  and  received  will  lie  to  recover 
money  paid  under  an  illegal  contract  which  has  not  been  carried  out, 
provided  the  illegal  object  has  not  been  effected  by  the  mere  payment 
of  the  money,  and  provided  the  object  is  malum  prohibitum,  and  not 
malum  in  se.**  We  have  also  seen  that  in  certain  cases  the  parties 
to  an  illegal  contract  are  not  regarded  as  being  in  pari  delicto,  and 
that  the  person  who  is  the  less  guilty  is  allowed  to  recover  what  he  has 
paid  under  the  contract.'"  So,  also,  where  a  person  has  performed 
services  under  an  illegal  contract,  and  he  is  not  in  pari  delicto  with 
the  other  party,  he  may  be  allowed  to  recover  what  the  services  are 
worth.  Where,  however,  an  illegal  contract  has  been  performed,  and 
the  illegal  object  effected,  neither  party,  if  he  knew  of  the  illegality, 
can  recover  for  the  benefits  conferred  upon  the  other.'* 

Same — Part  Performance  of  Unenforceable  or  Void  Agreement 

Where  an  agreement  is  not  illegal,  but  merely  void,  or  unenforce- 
able, and  one  of  the  parties  refuses  to  perform  his  promise  after  per- 
formance or  part  performance  by  the  other,  the  law  will  create  a 
promise  to  pay  for  the  benefits  received.  If  a  man  delivers  goods,  or 
conveys  land,  or  renders  services  for  another  under  a  contract  which 
is  void  or  unenforceable,  but  not  illegal,  he  may  recover  on  the  quan- 
tum valebat  or  quantum  meruit.'''  Such  is  the  case  with  contracts 
which  are  unenforceable  because  of  noncompliance  with  the  statute 
of  frauds." 

A  party,  however,  who  has  partly  performed  a  contract  which  is 
merely  unenforceable  and  not  illegal,  cannot,  by  the  weight  of  au- 
thority, abandon  it,  and  recover  for  the  part  performance,  if  the  other 
party  is  willing  to  carry  out  the  contract."* 

«4  Ante,  pp.  425,  431.  «°  Ante,  pp.  428,  431. 

36  Roller  V.  Murray,  112  Va.  780,  72  S.  E.  605,  38  L.  R.  A.  (N.  S.)  1202.  Ann. 
Cas.  1913B,  1088.  For  criticism  of  rule,  see  Woodward,  Quasi  Cont.  214,  and 
article  by  Professor  J.  H.  Wigmore,  25  Am.  Law  Rev.  712.  See  '"Contracts," 
Dec.  Dig.  (Key-No.)  §  13S;   Cent.  Dig.  §§  6S1-700. 

8  7  Nugent  V.  Teachout,  67  Mich.  571,  35  N.^W.  254;  Patten  v.  Hicks,  43 
Cal.  509 ;  Rebman  v.  Water  Co.,  95  Cal.  390,  30  Pac.  564 ;  Ellis  v.  Cory,  74 
Wis.  176,  42  N.  W.  252,  4  L.  R.  A.  55,  17  Am.  St.  Rep.  125;  Lapham  v.  Os- 
borne, 20  Nev.  168,  18  Pac.  881;  Smith  v.  Wooding,  20  Ala.  324;  Little  v. 
Martin,  3  Wend.  (N.  Y.)  219,  20  Am.  Dec.  688 ;  Montague  v.  Garnett,  3  Bush 
(Ky.)  297;  ante,  p.  119.  See  "Work  and  Labor,''  Dec.  Dig.  (Key-No.)  §  10; 
Cent.  Dig.  §  25. 

3  8  See  cases  above  cited. 

39  Philbrook  v.  Belknap,  6  Vt.  383;  Galway  v.  Shields,  66  Mo.  313,  27  Am. 
Rep.  351;  Ketchum  v.  Evertson,  13  Johns.  (N.  Y.)  359,  7  Am.  Dec.  384;  Col- 
lier V.  Coates,  17  Barb.  (N.  Y.)  473;   Gretou  v.  Smith,  33  >i.  Y.  245;   Nelsna  f. 


§  273)  EECOVERY  FOR  BENEFITS  CONFERRED  65 J 

Same — On  Rescission  of  Contract 

As  we  have  seen,  if  a  person  has  obtained  money  from  another  un- 
der an  agreement  which  the  latter  has  the  right  to  rescind  on  the 
ground  of  fraud,  duress,  or  undue  influence,  or  on  the  ground  of  want 
or  failure  of  consideration,  or  want  of  capacity  to  contract,  or  be- 
cause of  a  breach  of  his  contract  by  the  other  operating  as  a  dis- 
charge, he  may,  on  rescinding  the  contract,  recover  the  amount  paid 
as  money  received  for  his  use.***  So,  by  the  weight  of  authority, 
where  a  person,  for  like  reasons,  rescinds  a  contract  which  he  has 
partly  performed  by  the  rendition  of  services,  he  may  recover  for 
the  services  on  a  promise  created  by  law  because  of  their  receipt  and 
the  benefit  conferred.*^ 

The  existence  of  the  special  contract  in  these  cases  which  has  been 
rescinded  precludes  the  implication  of  any  other  contract  in  fact.  The 
obligation,  therefore,  is  necessarily  imposed  by  law. 

Shelby  Manufg  &  Imp.  Co.,  96  Ala.  515,  11  South.  695,  38  Am.  St.  Rep.  116; 
McKinney  v.  Harvie,  38  Minn.  18,  35  N.  W.  668,  8  Am.  St.  Rep.  640 ;  Sennett 
V.  Shehan,  27  Minn.  328,  7  N.  W.  266 ;  Kriger  v.  Leppel,  42  Minn.  6,  43  N.  W. 
484;  Sims  v.  Hutchins,  8  Smedes  &  M.  (Miss.)  331,  47  Am.  Dec.  90;  Abbott 
V.  Inskip,  29  Ohio  St.  59 ;  Shaw  v.  Shaw,  6  Vt.  69 ;  Plummer  v.  Bucknam,  55 
Me.  105 ;  Clark  v.  Terry,  25  Conn.  395 ;  Hawley  v.  Moody,  24  Vt.  605 ;  Rich- 
ards V.  Allen,  17  Me.  296;  ante,  p.  160.  Contra,  King  v.  Welcome,  5  Gray. 
(Mass.)  41  (but  see  Riley  v.  Williams,  123  Mass.  506) ;  Koch  v.  Williams,  82 
Wis.  180,  52  N.  W.  257.  See  ''Work  and,  Labor,"  Dec.  Dig.  {Key-l^o.)  §  U; 
Cent.  Dig.  §§  29-88;  ''Contracts,"  Cent.  Dig.  §§  1J,16-W8,  1500,  1506,  1508, 
1551 

*o  Ante,  p.  630.. 

*i  Palanche  v.  Colburn,  8  Bing.  14;  Ex  parte  Maclure,  L.  R.  5  Ch.  App. 
737 ;  Seipel  v.  Insurance  Co.,  84  Pa.  47 ;  Gaffney  v.  Hayden,  110  Mass.  137,  14 
Am.  Rep.  580;  Medbury  v.  Watrous,  7  Hill  (N.  Y.)  110;  Williams  v.  Bemis, 
108  Mass.  91,  11  Am.  Rep.  318 ;  Brown  v.  Railway  Co.,  36  Minn.  236,  31  N.  W. 
941;  Shane  v.  Smith,  37  Kan.  55,  14  Pac.  477;  ante,  p.  647.  See  "Work  and 
Labor,"  Deo.  Dig.  {Key-No.)  §  i///   Cent.  Dig.  §§  20-33. 


TABLE  OF  CASES  CITED 


[thb  figures  befeb  to  pages] 


Aaron  r.  Harley,  199. 

Abbitt  V.  Creal,  230. 

Abbott  V.  Doane,  160. 

Abbott  V.   Inskip,  651. 

Abbott  V.  Rose,  249.  605. 

Abbott  V.  Shepard,  31. 

Abell  V.  Munson,  79,  534. 

Abraham  v.  Railroad,  505. 

Abrams  v.  Railroad  Co.,  403. 

Absbire  v.   Corey,  464,  554. 

Acheson  v.  Chase,  339. 

Ackert  v.  Barker,  373. 

Ackley  v.  Parmenter,  85. 

Acme   Electrical,   etc.,   Co,   v.   Van   Der- 

beck,   332. 
Acme  Mfg.  Co.  v.   Reed,  29. 
Adair  v.   Winchester,  457. 
Adams  v.  Adams,  90,  383. 
Adams  v.  Bank,  301,  304. 
Adams  v.   Beall,  204,  205,  206,  217. 
Adams  v.  Carlton,  113. 
Adams  v.  Coulliard,  414. 
Adams  v.  Crosby,  648. 
Adams  v.  Frye,  603,  605. 
Adams  v.  Gay,  328,  332,  433. 
Adams    v.    Guyandotte    Valley    R.    Co., 

579. 
Adams  v.  Jones,   29. 
Adams  v.  Kuehn,  445. 
Adams  T.  Leavens,  464. 
Adams  v.  Lindsell,  31,  38. 
Adams  v,   McMillan,  106, 
Adams  v.  Messinger,  613. 
Adams  v.  Nichols,  591. 
Adams  v,   Otterback,  497. 
Adams  V.  Reeves,   638. 
Adams  v.    Rodarmel,   464. 
Adams  v.  Ryan,  66. 
Adams  v.  Schiffer,  302,  303. 
Adams  v.   Shirk,  447. 
Adams  v.    Stewart,  325. 
Adams  Co.  v.  Hunter,  353. 
Adams  Exp.  Co.  v.  Reno,  426. 
Adams  Exp.  Co.  v.  Tre;io,  538. 
Adams  Radiator     &     Boiler     Works    v. 

Schnader,  542. 
Adkins   v.   Watson,   109. 
Adier  v.  Miles,  593. 
Adler  v.  Railroad  Co.,  460. 
Adriance  v.  Rutheford,  538. 
.^P.tna  Indemnity  Co.  v.  Waters,  502. 
iElna  Ins.  Co.  v.  Reed,  2S1. 
Clark  Cont.(3d  Ed.) 


.^tna  Iron  &   Steel  Works  v,   Kossuth 

County,  540. 
^Etna  Life  Ins.  Co.  v,  France,  267, 
/Etna  Life  Ins.  Co,  v.  Nexsen,  611. 
.I'ltna  Life  Ins.  Co.  v.  Sellers,  228. 
.l^tna  Nat.  Bank  v.  Winchester,  601. 
Agnew  v.  Dumas,  129. 
Aiken  v.   Blaisdell,  321,  323,  327,  415, 

435. 
Aiken  v,  Nogle,  101. 
Aiken  v.    Short,   639. 
Aiman  v.  Stout,  225. 
Ainslie  v.  Martin,  181. 
Aiuslie  V.  Wilson,  630,  632, 
Aitkin  v,  Lang's  Adm'r,  46. 
A.  J.  Anderson  Electric  Co.  v.  Lighting 

Co.,  533. 
Akin  V.  Peters,  547. 
Alabama  G.  S.  R.  Co.  v.  Railroad  Co., 

95. 
Alabama  Mineral  Land  Co.  v.  Jackson, 

107. 
.Vlaska  Packers'  Ass'n  v.  Domenico,  159. 
.Albert's  Ex'rs  v.  Ziesler's  Ex'rs,  525. 
Alcott  v.  Barber,  325. 
Alden  v.  Wright,  290. 
Alderson  v.  Langdale,  602,  604. 
Aldine  Mfg.  Co.  v.  Barnard,  647,  648. 
Aldous  V.  Cornwell,  603, 
Aldrich   v.  Aldrich,   628. 
A  Id  rich  v.  Ames,  88. 
Aldrich  v.  Blackstone,  330. 
Aldrich  v.   Chemical   Nat.   Bank,  643. 
Aldrich  v.  Funk,  206. 
Aldrich  v.  Grimes,  210. 
Aldrich  v.   Jackson,  587.  , 

Aldrich  v.  Jewell,  84. 
Aldrich  v.  Price,  533. 
A.    Leschen  &    Sons   Rope   Co.  T.   May- 
flower S.  M.  &  R.  Co.,  547. 
Alexander  v.  Barker,  434. 
Alexander  v,   Brogley,  285. 
Alexander  v.  Gish,  452. 
Alexander  v.  Pierce,   298,   299,  300. 
Alexander  v.   Swackhamer,  250. 
Alexander  v.  Vane,  628. 
Alfred   Shrimpton  &   Sons  v.   Dworsky, 

125. 
Alfred   Shrimpton   &   Sons  v.   Philbrick, 

285 
Alser'  V.  Scoville,  86. 
Alser  V.  Thacher,  72,  385,  388. 
Alker  v.  Alker,  271. 
Allan  V.  Lake,  580. 

(653) 


654 


CASES   CITED 
[The  flgurea  refer  to  pages] 


Allard  v.  Greasert,  129. 

Allard  v.   Lamirande,   i575. 

Allcord  V.    Skinner,  309. 

AUegie  V,  Insurance  Co.,  3G8, 

Allegre's  Adm'rs  v.  Insurance  Co.,  260. 

Allen  V.  Allen,  20,  71,  578. 

Allen  V.  Baker,  59G,  G48. 

Allen  V.  Bank,  498. 

Allen   V.  Berryhill,  227,  228,  231. 

Allen  V.  Brown,  405. 

Allen  V.  Bryson,  171,  172. 

Allen  V.  Chouteau,  30,  53. 

Allen  V.   Compress   Co.,   536. 

Allen  V.   Culver,  551. 

Allen  V.  Deming,  332. 

Allen  V.   Duffie,   147,  331. 

Allen  V.  Ford,  647. 

Allen  V.  Gardner,  329. 

Allen  V.   Hammond,  252. 

Allen  V.  Hart,  271.  279.  285. 

Allen  V.  Ilartfield.  274.  576. 

Allen  V.   Hawsk,  488. 

Allen  V.   Jaquisb,   531. 

Allen  V.    Kennedy,  470. 

Allen  V.  Kirwan,  51. 

Allen  V.  Lardner.  193. 

Allen  V.  Pearce.  408. 

Allen  V.   I'lasmeyere,   157. 

Allen  V.  Kescous,  317. 

Allen  v.  Sowerby,  533. 

Allen  V.   With  row.  440. 

Allen  V.  Woodward.  171. 

Aller  V.  Aller,  74. 

Alliieyer  v.  Louisiana.  320. 

Alliance  Bank  v.   Broom,  152. 

Allin  V.  Shadburue'.s  Ex'r,  6,  476,  478. 

Allis  V.  Billings.  227.  231. 

AUis  V.  McLean,  Oil. 

Allister  \.  Hoffman,  303. 

AUore  v.  Jewell.  311. 

Allsbouse  V.  liamsay,  121. 

Almond  v.  Hart,  8S. 

Alston  V.  Boyd,  220. 

Alsworth   V.   Cordtz,  202. 

Alt  V.  Graff,  217. 

Alton  V.  Bank,  257. 

Alton  V.  First  Nat.  Bank,  639. 

Alvarez  v.  Bi-annan,  280. 

Alves  V.  Hodgson,  430. 

Alvord  V.  Collin,  351. 

Alvord  V.   Smith.  47,   343. 

Ambler  v.   Fbillips,  497. 

American  Box  Macb.  Co.  v.  Grossman, 
012. 

American  Can  Co.  v.  Agricultural  Ins. 
Co.  of  Watertown,  N.  Y.,  3. 

American  Copying  Co.  v.  Muleski,  53. 

American  Cotton  Oil  Co.   v.   Kirk,   148. 

American  Emigrant  Co.  v,  Adams  Coun- 
ty, 507. 

American  Exch.  Nat.  Bank  v.  Railroad 
Co..  449. 

American  Gas  &  Oil  Co.  v.  Wood,  504. 

American  Lithographic  Co.  v.  Commer- 
cial Casualty  Ins.  Co..  504,  508. 

American  Mercantile  Exchange  v.  Blunt, 
437,  593. 

American  Mortg.  Co.  of  Scotland  V. 
Wright,  208,  210. 


American  Pencil  Co.  v.  Wolfe,  86. 
American  Surety  Co.  v.  Pauly,  508. 
American   Towing  &    Lightering    Co.   T. 

Baker-Whitley  Coal  Co.,  502. 
Ames  V.  Ames,  113. 
Ames  V.  Foster,  88. 
Ames  V.  Oilman,  325. 
Ames  V.  Railroad  Co.,  442. 
Amestoy  v.  Transit  Co.,  366. 
Amey  v.  Cockey,  200. 
Amis  V.  Kyle,  329. 
Ammerman  v.  Ross,  339. 
Ammondson  v.  Ryanj338. 
Amory  v.  Oilman,  342,  344. 
Amoskeag  Mfg.  Co.  v.  U.  S.,  513. 
Amsden  v.  Atwood,  561. 
Anchor  Electric  Co.  v.  Hawkes,  389. 
Anderson  v.   Anderson,  299. 
Anderson  v.  Armstead,  252,  588. 
Anderson  v.  Baughman,  507. 
Anderson  v.   Brewing  Co.,  117. 
Anderson  v.   Earns,   412. 
Anderson  v.   Granite   Co.,   617. 
Anderson  v.  Griffith,  549. 
Anderson  v.  Harold,  111. 
Anderson  v.  Insurance  Co.,  260. 
Anderson  v.  Jett,   300. 
Anderson  v.  Martindale,  479,  481. 
Anderson  v.  May,  590. 
Anderson  v.  Reardon,  401. 
Anderson  v.   Smith.  187. 
Anderson  v.   Soward,  208. 
Anderson  v.  Spence,  88. 
Anderson  v.  Todd,  540. 
Anderson  v.  U.  S.,  395. 
Anderson  v.  ^'an  Alen.  463. 
Anderson  v.   Walter,  488. 
Anderson  v.  Whitaker,  499. 
Anderson  Electric   Co.   v.   Lighting   Co., 

533. 
Anderson    School  Tp.    v.    Milroy    Lodge, 

79. 
Anding  v.  Levy,  437. 
Andre  v.  Bodraan,  85.  88. 
Andre  v.  Oraebner.  520. 
Andrew  v.  Babcock.  110,  118. 
Andrews  v.  Association,  425. 
Andrews  v.  Belfield,  541,  542. 
Andrews  v.  Calloway,  004. 
Andrews  v.  Herriot,  432. 
Andrews  v.  Pond,  430. 
Andrews  v.  Smith,  599. 
Andrews  v.   Sullivan,  512. 
Androscoggin  Water  Power  Co.  v.  Met- 

calf.  047. 
Angier  v.  Webber,  389. 
Angle  V.  Insurance  Co.,  600. 
Angle  V.  Railroad  Co.,  441. 
Anglo-Californian  Bank  v.  Ames.  233. 
Angus  V.  Robinson,  478. 
Anuus  V.  Scully,  595. 
Anheuser-Busch  Brewing  Ass'n  v.   II ut- 

macher,  255. 
Anheuser-Busch   Brewing   Ass'n    v.   Ma- 
son, 416. 
Ankeny  v.  Young  Bros.,  112. 
Ann  Berta  Lodge  No.  42,  I.  O.  O.  F.,  v. 

Leverton,  118. 
Anonymous,  96,  241. 


CASES   CITED 
[The  figures  refer  to  pages] 


655 


Anstey  r.  Marden,  85. 

Anthony  v.  Machine  Co^  243, 

Aplin   V.  Board,  180. 

Appleby  v,  Dods,  649. 

Appleby  v.  Johnson,  36, 

Appleby  v.  Myers,  595,  648. 

Appleby's  Estate,  In  re,  381. 

Applegarth  v.   Robertson,  292. 

Appleman  v.  Fisher,  346,  495. 

Appleton  V.  Bascom,  521. 

Appleton  Bank  v.  McGilvray,  638. 

Appleton  Waterworks  Co.  v.  Appleton, 
19. 

Arbuckle  v.  Reaume,  433. 

Archer  v.  Bogue,  478. 

Archer  v.  Freeman,  374. 

Archer  t.   Helm,  92. 

Archer  v.  Hudson,  308.  310. 

Archibald  v.  Thomas,  508. 

Arctic  Ice  Co.  v.  Franklin  Electric  & 
Ice  Co.,  397. 

Arend  v.  Smith,  157. 

Argo  V.  Coffin,  224. 

Argus  Co.  V.  Albany,  103. 

Arkansas  M.  R.  Co.  v.  Whitley,  97. 

Arkansas  Valley  Smelting  Co.  v.  Belden 
Min.  Co.,  453,  4.59. 

Arkwright  v.  Newbold,  289. 

Arlington  Hotel  Co.  v.  Ewing,  364. 

Armfield  v.  Tate,  210,  416. 

Arraitage  v.  Widoe,  191,  206. 

Armour  v.  Insurance  Co.,  206. 

Armsby  Co.  v.  Gray's  Harbor  Commer- 
cial Co.,  524. 

Armstrong  v.   Bank,  417. 

Armstrong  v.  Best,  434. 

Armstrong  v.  Express   Co.,  403. 

Armstrong  v.  Granite  Co.,  504,   505. 

Armstrong  v.   Lewis,   296. 

Armstrong  v.  McGhee,  51. 

Armstrong  v.   Middaugh,  340. 

Armstrong  v.    Prentice,   158. 

Armstrong  v.   Toler,  417,  435. 

Arnheiter  v.  State,  330. 

Arnold  v.  Clifford,  320. 

Arnold  v.  Garst,  79. 

Arnold  v.  Iron  Works,  227,  231,  232. 

Arnold  v.  Kreutzer,  386. 

Arnot  V.  Coal  Co.,  394,  415. 

Arthur  v.  Gordon,  45. 

Arthur  v.  Sears,  537. 

Arundel  v.  Trevillian,  381. 

Ash  brook  v.  Dale,  414. 

Ashbury  Carriage  Co.  v.  Riche,  242,  410. 

Ashcroft  V.   Butterworth    132. 

Ashcroft  V.   Morrison,  lo2. 

Ashfield  V.  Ashfield,  209. 

Ashley  v.  Dixon.  442. 

Ashley  v.  Henahan,  540,  577. 

Ashmead  v.    Reynolds,   232. 

Ashton  V.  Thompson,  309,  310. 

Asiatic  Banking  Corp.,  Ex  parte,  48, 
464. 

A?koy  V.  Williams,  193,  197,  199. 

Askin  V.  Lebus,  335. 

A  spell  V.  Hosbein,  333. 

Aspinwall  Mfg.  Co.  v.  Gill,  393. 

Astley  V.  Reynolds,  035. 

Atcheson  t.  Mallou,  319. 


Atchison  v.  Pease,  92. 

Atchison  R.  Co.  v.  Dill,  302. 

Atchison,  T.  &  S.  F.  R,  Co.  v.  English, 

97. 
Atchison,  T.  &  S.  F.  R.  Co.  t.  Lawler, 

403. 
Atherford  v.  Beard,  342. 
Atkins  V.  Anderson,  618. 
.\tkins  V.  Ban  well,   173,   629. 
Atkins  V.  Johnson,  319. 
Atkins  V.  Owen,  631. 
Atkinson  v.   Allen,   303. 
Atkinson  v.  Cox,  548. 
Atkinson  v.  Dance,  620. 
Atkinson  v.  Denby,  429. 
Atkinson  v.   Truesdell,   496. 
Atkyus  V.  Kinnier,  390. 
Atlanta    Consolidated    St.     Ry.    Co.    y. 

Keeny,  545.  - 
Atlanta    Mining  &   Rolling   Mill   Co.   v. 

Gwyer,  338. 
Atlanta  &  St.  A.  B.  R.  Co.  v.  Thomas, 

521. 
Atlantic  Coast  Line   R.  Co.   v.  Beazley, 

349.  403. 
Atlantic  Cotton  Mills  v.  Orchard  Mills, 

636. 
Atlantic  Phosphate  Co.  v.   Ely,  432. 
Atlantic  &   N.   C.   R.   Co.  v.   Atlantic  & 

N.  C.  Co.,  454. 
Atlantic   &  N.  C.  R.  Co.   v.  Atlantic  & 

N.  C.  Co.,  458. 
Atlantic  &  P.  Telegraph  Co.  v.  Barnes, 

270. 
Atlas  Bank  v,  Brownell,  270. 
Atlas  Nat.  Bank  v.  Holm,  319. 
Atlee  V.  Blackhouse,  302,  034, 
Atlee   V.  Bartholomew,   490. 
Atlee  V.  Fink,  379. 
Attaway  v.   Bank,  380. 
Attrill   V.   Patterson,   538. 
Atwater  v.   Hough,  125. 
Atwater  v,  Manville,  345,  424. 
Atwell's  Adm'rs  v.  Milton,  477. 
Atwood  V.  Cobb,  102,  106,  506.  507. 
Atwood   V.  Cornwall,   545. 
Atwood  V.  Emery,  508. 
Atwood  V.   Marshall,   67. 
Atwood  V.  Mt.  Holly    529. 
Atwood  V.  Norton,  101. 
Aubert  v.  Maze,  322. 
Audenreid's   Appeal,   309. 
Audette  v.  L'Union  St.  Joseph,  577. 
Auditor  v.   Ballard,  49. 
Audrieu,  Succession  of,  174,  175. 
Audubon  v.  Insurance  Co.,  618. 
Aughey  v.  Windrem,  379. 
Augusta  Ins.  &  Banking  Co.  v.  Abbott, 

266. 
Augusta    Southern   R.    Co.   v.    Smith    & 

Kilby  Co..  534. 
Aulger  V.  Clay,  553. 
Aultman  v.  Waddle,  373. 
Aultman  &»Taylor  Co.  v.  Trainer,  588. 
Austin  V.   P>acun,  337. 
Austin  V.  Burge,  19. 
Austin  V.  Seligman,  449. 
Austin  V.  Wacks,  512,  513. 
Austrian  t.  Springer,  49^ 


056 


CASES   CITED 
[The  figures  refer  to  pagea] 


Averill  v.  Hedge,  31.  38,  39,  44. 

Avery  v.  Bowdeo,  558,  5GL 

Avery  v.  Everett,  184. 

Avery  v.  Halsey,  412. 

Avery  v.  Miller,  580. 

Avery  v.  Willson,  2G4, 

Avery  v.   Wilson,  569. 

Await  V.  Association,  635. 

A^er  V.  Hawkins,  549. 

Ayer  v.  Kilner,  530. 

Ayer  v.  Manufacturing  Co.,   492. 

Ayer  v.  Telegraph  Co„  255. 

Aycrst  v.  Jenkins,  376,  420. 

Aylesford  v.  Morris,  300,  312. 

Ay  res  v.   French,  274. 

Ayres  v.  Railway  Co.,  159.- 

B 

Babbitt  v.  Bennett,  66. 

Babcock  v.  Case.  294,  295. 

Babcock  v,  Hawkins,  616. 

Babcock  v.  Lawson,  296. 

Babcock  &  Wilcox  Co.  v.  Moore,  53a 

Bach  V.  Smith,  327. 

Bach  V.  Tuck,  286,  294. 

Bachelder  v.  Fiske,  477,  482. 

Backua  v.  Fobes,  530. 

Backus  V.  Spaulding,  464. 

Bacon  v.  Bonham,  313. 

Bacon  v.  Brown,  550. 

Bacon  v.  Cobb,  528. 

Bacon  v.  Eccles,  128. 

Bacon  v.  Lee,  322. 

Bad!:er  v.  I'hinney,  212,  213,  214,  222. 

Badger  v.  Williams,  365. 

Badiscbe    Anilin    uud    Soda    Fabrik    t. 

Schott,  389. 
Baehr  v.  Wolf,  428. 
Baer  v.  Christian,  137. 
Bagley  v.  Peddle,  516. 
Bagley  v.  Kolling-MiU  Co.,  580,  585. 
Bailey  v.  Association,  400. 
Bailey  v.  Austrian,  149. 
Bailey  v.   Bamberger,  217. 
Bailey  v.  Bensley,  498. 
Bailey  v.  Bussing,  628. 
Bailey  v.  Day,  161. 
Bailey  v.  Dillon,  382. 
Bailey  v.  Fox.  293. 
Bailey  v.  Mogg,  325.  437. 
Bailey  v.  Ogden,  104,  110. 
Bailey  v.  Railroad  Co.,  504. 
Bailey  v.  Richardson,  469. 
Bailey  v.  Walker,  137. 
Bailey  &  Graham  v.  Phillips,  345. 
Baily  v.  De  Crespigny,  592,  593. 
Bainbridge  v.   Firmstone,   134,   141. 
Baiubridge  v.  Pickering,  195,  196. 
Baird  v.  Laevison,  588. 
Baird  v.  Mayor,  291. 
Baird  v.  Millwood,  338. 
Baird  v.  Sheehan,  362. 
Baird   v.   U.  S.,   164. 
Baker  v.  Baker,  119. 
Baker  v.  Burton,  326. 
Baker  v.  Codding,  99,  101, 
Baker  v.  Dening,  111. 
Baker  v.  Gregory,  239. 


Baker  v.  Haskell.  67. 

Baker  v.  Holt,  37. 

Baker  v.   Humphrey,   269. 

Baker  v.  Jewell,  479. 

Baker  v.  Johnson,  593. 

Baker  v.  Kennett,  2U4,  209. 

Baker  v.  Lauterbach.  98,  114,  120. 

Baker  v.  Lever,  295. 

Baker  v.   I^vett,  189,   191. 

Baker  v.   Maxwell,   294. 

Baker  v.  Morton,  298,  299. 

Baker  v.  Railroad  Co.,  140. 

Baker  v.    Rockabrand,    275. 

Baker  v.   Stackpoole,   552. 

Baker  v.  Stone,  222. 

Baker  v.   Wainwright,  92. 

Balch   v.  Patten,   631. 

Baldey  v.  Parker,  124. 

Baldock  v.  Atwood,  79. 

Baldwin  v.   Barrows,  249. 

Baldwin  v.   Bricker,  248. 

Baldwin  v.   Dunton,   225. 

Baldwin  v,  Emery,  451. 

Baldwin  v.   Hiers.  S3.   84. 

Baldwin  v.  Hutchinson,  299. 

Baldwin  v.    Rosier,  202. 

Baldwin  v.  Steamship  Co..  635. 

Baldwin  v.  Timber  Co.,  303. 

Baldwin  v.  Walker,  470. 

Baldwin  v.  Williams,  126. 

Baldy  v.  Stratton.  376. 

Balfour  v.  Davis,  334. 

Bail  V.  Dunsterville,  65. 

Bail  v.  Mannin,  224. 

Ballard  v.   Cheney,   513. 

Ballard  v.  Insurance  Co..  605. 

Ballinger  v.  Bourland,  339. 

Ballon  V.  March.  168. 

Baltimore    Baseball    Club    &    Exhibition 

Co.  V.  Pickett,  500.    - 
Baltimore,  etc.,  R.  Co.  v.  Ralston,  359. 
Baltimore  Fire    Ins.    Co.    v.    McGowan, 

532. 
Baltimore    Humane    Impartial     Soc.    & 

Aged   Women's  &  Aged  Men's   Home* 

V.  I'ierce,  350. 
Baltimore  Pearl  Hominy  Co.  v.  Linthi- 

cum,  65. 
Baltimore  &  O.  R.  Co.  v.  Brydon,  577. 
Baltimore  &  O.  S.  W.  R.  Co.  v.  Voight, 

404. 
Baltimore  &  S.  R.  Co.  v.  Faunce,  638. 
Balue  V.  Taylor.  70,  280,  294. 
Banchor  v.   Mansel,  415,  435,  437. 
Bancroft  v.  Dumas,  549. 
Bane  v.  Detrick,  298,  299,  300. 
Bane's  Case,  154. 
Bangs  V.  Hornick,  346. 
Bank  v.  Cooper,  492. 
Bank  v.  Hagner,  566. 
Bankhead  v.  Alloway,  271. 
Bank  of  Australia  v.  Breillat,   409. 
Bank  of  Chillicothe   v.   Dodge,  257. 
Bank  of  Columbia   v.   Hagner,  36,  576, 

578. 
Bank  of  Columbia  v.  Patterson,  241. 
Bank  of  Commerce  v.  Bank,  602. 
Bank  of  Commerce  v.  Bogy,  461. 
Bank  of  Commerce  t.  Union  Bank,  639. 


CASES   CITED 
[The  figures  refer  to  pages] 


657 


Bank  of  Genesee  v.  Patchin  Bank,  003. 
Bank  of  Ireland  v.  Evans  Charities,  241. 
Bank  of  Limestone  v.  Penick,  002. 
Bank  of  Monroe  v.  Gifford,   540. 
Bank  of  New  Hanover  v.  Bridgers,  151. 
Bank  of  New  Orleans  v.  Matthews,  183. 
Bank  of  North  America  v.  Wheeler,  017. 
Bank  of  Radford  v.  Kirby,  335. 
Bank  of    United    States    v.    Dandridge, 

241. 
Bank  of  United    States   t.   Daniel,   250, 

281. 
Bank  of  United   States  v.   Owens,  322, 

323,  324. 
Banks   v.  Dunn,  354. 
Banks  v.   Flint,  339. 
Banks   v.   Werts,  332. 
Bannerman  v.  White,  265. 
Bannister  v.  Victoria  Coal  &  Coke  Co., 

559. 
Bannon  v.  Aultman,  492. 
Banorgee  v.  Ilovey,  71,  600. 
BantOQ  v.   Shorey,  94. 
Bantz   V.    Bantz,  20. 
Bar  bee  v.  Barbee,  488. 
Barber  v.  Brown,  637. 
Barbour  v.   Barbour,   116,  383. 
Barbour  v.   Hickey,  554. 
Barclay  v,  Pearson,  347,  424,  426. 
Bardwell  v.   Purrington,   186. 
Barghraan  v.  Portman,  594. 
Barhite,  Appeal  of,  21. 
Barker  v.    Barker,   373,   375. 
Barker  v.  Bucklin,   86. 
Barker  v.  Critzer,  149. 
Barker  v.  Dinsmore,  250,  292. 
Barker  v.  Hibbard,  I'j:'..  197. 
Barkley  v.  Tarrant,  493. 
Barlow  v.  Lambert,  490. 
Barlow  v.  Robinson,  209. 
Barnaby  v.   Barnaby,   191. 
Barnard  v.   Campbell,   296. 
Barnard  v.   Iron  Co..  293. 
Barnard  v.  Kelloprg,  500. 
Barnard  v.  Lee,  513. 
Barnard  v.   Simons,  153. 
Barnes    v.    American    Brake-Beam    Co., 

51L 
Barnes  v.  Barnes,  66,  193. 
Barnes  v.   Brown,  428,  008. 
Barnes  T.   Gibbs,   618. 
Barnes  v.    Hedley,  170,   175. 
Barnes  v.   Insurance   Co.,   449,  529. 
Barnes  v.  Morrison,  319. 
Barnes  v.  Shoemaker,  250. 
Barnes  v.  Smith,  345,  340,  43L 
Barnes  v.  Strong,  372,  373. 
Barnes  v,  Toye,  195.  196,  198. 
Barnet  v.   Smith,  548. 
Barnett  v.  Barnett,  225,  286,  491. 
Barnett  v.  Franklin  College.  148,  566. 
Barnett  v.  Warren,  031,  032. 
Barney  v.  Forbes,  487. 
Barney  v.  Grover,  403. 
Barnev  v.    Newcomb,  508. 
Barngrover  v.  Pettisrew,  375,  383. 
I'nrons  v.  Brown,  255. 
Barr  v.  Gibson,  J.a'2. 
Barr  v.  Kimball,  291. 

CL.A.iiK  Co.NT.(3u  Ed.) — i2 


Barrs  Adm'x  v.  African  M.  E.  Church, 
339. 

Barrett  v.  Buxton,  233. 

Barrett  v.  Dodge,  430. 

Barrett  v.  Fornev,  117. 

Barrett  v.  McAllister,  103,  12L 

Barrett  v.  Sipp,  550. 

Barrie  v.  Earle,  294. 

Barringer  v.  Ryder,  157. 

Barron  v.  Porter,  403. 

Barron  v.  Tucker,  350. 

Barron  v.  Vandvert,  101. 

Barry  v.  Capen,  357. 

Barry  v.  Crosky,  287. 

Barry  T.  Jordan,  440. 

Barrv  v.  Ransom,  491. 

Barthell  v.  Chicago,  etc.,  R.  Co.,  373. 

Bartholomew  v.  Dighton,  191. 

Bartholomew  v.  Jackson,  23,  170,  171, 
WO. 

Bartle  v.  Coleman,  -124. 

Bartlett  v.  Bailey,  217. 

Bartlett  v.  Blanchard,  610. 

Bartlett  v.  Collins,  431,  435,  436. 

Bartlett  v.  Cowles,  213. 

Bartlett  v.  Insurance  Co.,  87. 

Bartlett  v.  Mystic  River  Corp.,  96. 

Bartlett  v.  Remington,  493. 

Bartlett  v.  Bobbins,  520. 

Bartlett  v.  Telegraph  Co.,  405i 

Bartlett  v.    Wyman,   157. 

Barton  v,  Benson,  319. 

Basket  v.   Moss,  352. 

Bass  V.  Patterson,  335. 

Bassett  v.  Bassett,  563. 

Bassett  v.  Brown,  295. 

Bassett  v.  Camp,  130. 

Bassett  v.  Hughes,  448,  450,  451. 

Bastrop,  etc..  Growers'  Ass'n  v.  Coch- 
ran, 591. 

Batavian  Bank  v.  North,  298. 

Bate  v.  Payne,  628. 

Bateman  v.  Butler,  86. 

Bates  V.   Babcnck,   93. 

Bates  V.  Ball,  234. 

Bates  V.  Boston  &  N.  Y.  C.  R.  Co.,  64. 

Bates  V.  Childers,  56. 

Bates  V.  Lumber  Co.,  460. 

Bates  V.  Sandy,  155. 

Bates  V.  Townley,    629. 

Batsford  v.  Every,  329. 

Batterman  v.  Pierce,  492. 

Battle  v.  McArthur    165. 

Battles  V.  Fobes,  68. 

Baugh  V.  Baugh,  019. 

Baughman  v.  Gould,  268. 

Baum  V.   Baum,  382. 

Baum  V.  McAfee,  476. 

Baumle  v.  Verde,  010. 

Bauscher  v.  Gies,  125. 

Bausman  v.  Guarantee  Co.,  546. 

Baxter  v.  Aubrej,  019. 

Baxter  v.  Billings,  590. 

Baxter  v,  Burfield,   474. 

Baxter  v.  Camp,  445. 

Baxter  v.  Portsmouth,  220,  227. 

Bay  V.   Williams,   448.   -^50. 

Bay  City  Bank  v.  Lindsay,  630. 

Bayard  v.  McLane,  370. 


658 


CASES    CITED 
[The  figures  refer  to  pages] 


Bayler  v.  Com.,  73. 

Bayley  v.  Homan,  615. 

Bayley  v.  Taber,  422. 

Baylies  v.  Fettyplace,  593. 

Baylis  v,  Dineley,  190, 

Bayne  v.  U.  S.,  G36. 

Bayne  v.  Wiggins,  109. 

Bayview    Brewing    Co.    v.    Techlenberg, 

5SS. 
Beach  v.   First   M.   E.   Church,  46. 
Beach  v.  Hotchkiss,  479. 
Beach  v.  MuUln.  538. 
Beadles  v.  Bless,  342. 
Beadles  v.  McElrath,  346,  48a 
Beal  V.  Chase,  3S8. 
Beal  V.   Polhemus,  357. 
Beal-Doyle   Dry   Goods    Co.   V.    Barton, 

366, 
Beals  V.  See,  230. 
Beaman  v.  Buck,  118. 
Beaman's  Adm'rs  v.  Russell,  88. 
Bean  v.  Atwater,  5G7, 
Bean  v.  Burbank.  43,   149. 
Bean  v.  Clark,   52. 
Bean  v.  Proseus,  589. 
Bean  v.  Simpson,  463. 
Bearce  v.   Bartsow,  339. 
Beard  v.  Beard,  640. 
Beard  v.  Bliley,  279.  290, 
Beard  v.  Campbell,  276. 
Beard  v,   Horton,   628. 
Beardsley  v,  Hotchkiss,  200,  202. 
Beardsley  v.  Knight,  64,  258. 
Beardsley   v,    Morgner,  460. 
Beasley  t.  Beasley,  232. 
Beattie  v.  Hilliard,  486. 
Beatty  v.   Lumber  Co.,  572. 
Beatty  v.  Miller,  554, 
Beatty's   Estate   v.    Western   College   of 

Toledo,  Iowa.  148, 
Beaman's  Adm'rs  v,  Russel,  88, 
Beauchamp  v,  Winn,  501, 
Beaumont  v,  Brengeri,  127,  129, 
Beaumont  v,  Greathead,  608, 
Beaumont  v.  Reeve,  136,  377,  420. 
Beaupre  v.  Telegraph  Co,,  52. 
Beaver  v.  Fulp,  161, 
Bechtel  v.   Cone,  117,  584. 
Beck  V.  Haas,  549. 

Beck  &  Pauli  Lithographing  Co,  v,  Colo- 
rado Milling  &  Elevator  Co,,  514,  543, 
Becker  v,  Becker,  532, 
Becker  v.  Boon,  553, 
Becker  v.  Mason,  220. 
Becker  v.   Waterworks,  443. 
Becker's  Inv,   Agency  v,  Rea,  338. 
Beckwith  v.  Butler,  225. 
Beckwith   v,   Cheever,   27, 
Beckwith  v,  Frisbie,  302. 
Beckwith  v,  Talbot,  110. 
Beddoe's  Ex'r  v.  Wadsworth,  470. 
Bedier  v.  Reaume,  294. 
Bedinger  v.   Whittamore;  114. 
Beebe  v.  Johnson,  167,  591. 
Beecham  v.   Smith,  481, 
Beecher  t.  Buckingham,  473. 
Beecher  v.  Conradt,  567, 
Beecher  v.  Peru  Trust  Co,,  322. 
Beekman  v.  Fletcher,  107. 


Beeler  v.  Young,  195,  197,  198,  199. 

Beer  v,  Aultman-Taylor  Co.,  4S7, 

Beeston   v.    Caller,    538. 

Begbie  v.  Sewa-e  Co.,  317,  424. 

Belialy  v.  Hatch,  5.54, 

Belli  V,  Schuett,  301. 

Behn  v.  Burness,  261,  582,  583,  584. 

Behrensmeyer  v.   Kreitz,  182. 

Beickler  v.  Guenther,  219. 

Beiler  v,  Devall,  101. 

Beissel  v.  VermilUon  Farmers'  Elevator 
Co.,  536,  542. 

Beitenman's  Appeal,  331. 

Beith  V.  Beith,  306. 

Belcher  v.  Belcher,  234. 

Belden  v.  Hann,  603. 

Belding  v.   Smythe,  428. 

Belding  Bros.  &  Co.  v.  Frankland,  274. 

Belfast  &  M.  L.  B.  Co.  t.  Inhabitants 
of  Unity,  25. 

Belknap  v.  Bank,  601. 

Belknap  v.  Bender,  85. 

Bell  V.  Bank,  67. 

Bell  V,  Bruen,  504. 

Bell  V.  Burkhalier,  214. 

Bell  V.  Campbell.  428. 

Bell  V.  Dagg,  587. 

Bell  V.   Eaton,  276. 
Bell  V.  Ellis,  275. 

Bell  V.    Gardiner,   638. 

Bell  V.  Hewitt's  Ex'rs,  97. 

Bell  V.   Hoffman,  582. 

Bell  V.  Jordan,  504. 

Bell  V.   Keepers,  294. 

Bell  V.  McConnell,  379. 

Bell  V.  Mahin,  331.  605. 

Bell's  Adm'r  v.  Huggins'  Adm'rs,  589. 

Bellas  V.  Hays,  512. 

Belleville  Sav.  Bank  v.  Bornman,  547. 

Belleville  Sav.  Bank  v.  Winslow,  476. 

Belloff  V.  Dime  Savings  Bank,  639, 

Bellows  V,  Sowles,  81,  155, 

Belote  V.  Henderson,  305, 

Belz  V,  Keller,  279, 

Beman  v.  Wessels,  332. 

Bender  v.   Been,  161. 

Bender  v.  Sampson,  162. 

Bendernagle  v.  Cocks,  617. 

Benecke  v,  Haebler,  559, 

Benedict  v,  Batchelder,  333.    ' 

Benedict  v,  Cowden,  601, 

Benedict  v.  Miner,  602, 

Benesch  v,  Weil,  292,  296. 

Benge  v.  Hiatt's  Adm'r,  447. 

Benicia  Agr.  Works  v,  Estes,  488. 

Beninger  v,  Corwin,  277, 

Bennehan  v.   Webb,  509, 

Benneson  v.  Aiken,  66. 

Bennett  v,  Brumfitt,  111. 

Bennett  v,  Davis,  191, 

Bennett    v.    Eastern    Building   &    Loan 

Ass'n,  436. 
Bennett  v.  Ford,  302. 
Bennett  v.   Ilibbert,  182. 
Bennett  v.  Hill,  616. 
Bennett  v.   Hull,  123. 
Bennett  v,  Judson,  285. 
Bennett  v.  Morse.  167. 
Bennett  t.  Pierce,  589. 


CASES   CITED 
[The  figures  refer  to  pages] 


669 


Bensley  v.    Bignold,   322,   327. 

Henson  v.  Bawden,  351,  421. 

Benson  v.   Markoe,   257. 

Benson  v.  Monroe,  03G. 

Benson  v.   Reinshagen,  548. 

Benson  v.    SLotwell,    533. 

Bent  V.  Cobb,  112. 

Bent  V.    Manning,    198. 

Ben  tall  v.  Burn,  129. 

Bentinck  v.  Franklin,  370. 

Bentley  v.  Robson,  301. 

Benton  v.  Association,  39. 

Benton  V.   Holland,  G21. 

Benton  v.  Pratt,  287,  442. 

Benvon  v.  Cook,  313. 

Berdell  v.  Bissell,  1G4. 

Bergen  v,  Frisbie,  355. 

Bergenthal  v.  Fiebrantz,  638. 

Bergin  v.  Williams,  487. 

Bergson  v.  Insurance  Co.,  460. 

Berkmeyer   v.    Kellerman,   307. 

Berkshire  Woolen  Co.  v.  Proctor,  497. 

Berley  &  Kyzer  v.  Columbia,  556. 

Bernard  v.  Taylor,  342.  426.  643. 

Bernhardt  v.   Walls,   126. 

Berry   v.    Bacon,   71. 

Berry  v.   Bakeman,   276. 

Berry  v.  Carter,  3G9. 

Berry  v.  Doremus,  99. 

Berry  v.  Hall,  144. 

Berry  v.  Nail,  552. 

Berry  v.  Whitney,  281. 

Bersch   v.   Insurance  Co.,  344. 

Bertrand  v.  Byrd,  64. 

Besant  v.  Wood,  382. 

Besse  v.  Dyer,  47. 

Best  V.  Davis,  120. 

Best  V.    Strong,   373. 

Bestor  v.  Hickey,  208,  303. 

Bestor  v.  Wathen,  359. 

Bethlehem  v.  Annis,  453,  458. 

Bethlehem  Borough  v.   Fire  Co.,  647. 

Betterbee  v.  Davis,  554. 

Bettini  v.  Gye,  574,  583. 

Beverley's  Case,   223,  231. 

Bevier  v.  Covell,  339. 

Bevin  v.  Insurance  Co.,  344. 

Bias  V.  Atkinson,  379. 

Bibb  V.  Allen,  79,  105,  346,  430. 

Bice  V.    Building   Co.,  88. 

Bickel   V.   Sheets,  416. 

Bickford  v.  Cooper,  508. 

Bicknall  t.   Waterman,  547. 

Bicknell  v.  Bicknell,  197. 

Bidault  V.    Wales,   274. 

Biddel  v.  Brizzolara,  621. 

Bierne  v.  Ray,  144. 

Biest  V.  Shoe  Co.,  97. 

Bigelow  V.  Bigelow,  140. 

Bigelow  V.  Burnham,  436, 

Bigelow  V.  Grannis,  208. 

Bigelow  V.  Kinney,   190.  206,  212,  213. 

Bigelow  V.    Stilphen,    604. 

Bigger  V.  Bovard,  581. 

Biggers  v.  Owen,  48. 

BiKgs  V.  Barry,  275. 

Bignall   V.  Gould,  516. 

Bill  V.    Bament,   102. 

Bill  V.  Porter,  547,  600. 


Billings'  Appeal    473,  474,  597. 

Billingsley  v.  Harris,  70. 

Billington  v.  Cahill,  101. 

Billiot  V.  Robinson,  555. 

Billmeyer  v.  Wagner,  GIO. 

Binford    v.    Bruso,   285. 

Bingham  v.  Bingham,  252,  257, 

Bingham  v.   Madison,  255. 

Birchell  v.  Neaster,  120. 

Bird  V.  Gammon,  85. 

Bird  V.  Munroe,  102,  114,  132. 

Bird  V.   Randall,  477. 

Bird  V.    St.    Johns    Episcopal    Church, 

577. 
Bird  V.  Swain,  207. 
Birdsall  v.  Coon,  285. 
Birdsall  v.  Russell,  601. 
Birkbeck  v.   Kelly,  117. 
Birkett  v.  Chatterton,  326. 
Birkhauser  v.  Schmitt,  256,  257.  640. 
Birkmyr  v.  Darnell,  84. 
Birks  V.  French,  329. 
Birmingham  Ry.,  Light  &  Power  Co.  v. 

Hinton,  234,  235. 
Birmingham  Warehouse  &  Elevator  Co. 

V.  Land  Co.,  280. 
Bisbee  v.  McAllen,  323,  325. 
Bishop  V.   Eaton,  30. 
Bishop  V.  Holcomb,  462. 
Bishop  V.   Palmer,    168,   388,   407,   409, 

420. 
Bishop  V.  Small,  282. 
Bissell  V.  Heyward,  553. 
Bissell  V.  Spring  Valley  Tp.,  242. 
Bixby  V.  Dun^ap,  442. 
Bixby  V.  Moor,  20,  406,  407. 
Bize  V.  Dickason,  637. 
Black  V.   Black,   289. 
Black  V.  Cord,  73. 
Black  V.  De  Camp,  529, 
Black  V.  Foljambre,  306. 
Black  V.   Walker,  589. 
Black  V.  Wood  row,  598. 
Blackburn  v.  Hayes,  334. 
Blackburn  v.  Mann,  89. 
Blackburn  v.  Mason,  499. 
Blackburn  v.  Reilly,  571. 
Blackburn  v.  Smith,  641. 
Blackett  v.  Assurance  Co.,  500. 
Blackie  v.  Clark,  309. 
Blackman  v.  Dowiing,  589. 
Blacknall  v.  Rowland,  283. 
Blackwell  v.  Hamilton,  64. 
Blackwell  v.  Willard,  183, 
Blades  v.  Free,  4(i. 
Blagborne  v.  Hunger,  524.  533. 
Blagen  v.  Thompson,  609. 
Blaine  v.  Publishers :    Gtorge  Knapp  & 

Co.,  542. 
Blaisdell   v.  Ahern,  374. 
Blake  v.  Cole,  96. 
Blake  v.  Coleman,  487. 
Blake  v.   Elizabeth,  185. 
Blake  v.  Insurance  Co.,  33. 
Blake  v.  J.  Neils  Lumber  Co.,  80. 
Blake  v.  Peck,  151. 
Blake  v.  Robinson,  81. 
Blake  v.  Sawyer,  622. 
Blake  v.  Stump,  498. 


6G0 


CASES    CITED 
[The  figures  refer  to  pages] 


Blake  ▼.  Voight,  97, 

Blake  v.  Yount,  337.- 

Blakely  v.  Sousa,  317,  474,  596. 

Blakeney  v.  Goode,  126. 

Blalock   V.   Phillips    545,   647. 

Blanchard  v.  Russell,  434. 

Blancbard  v.  Trim,  534. 

Blanding  v.  Sargent,  99. 

Blaney  v.  Rogers,  252. 

Blank  v.  Dreher,  84. 

Blank  v.  Nohl,  383. 

Blaskower  v.  Steel,  621. 

Blatchford  v.  Preston,  352. 

Blattenberger  v.   Holman,  587. 

Bleaden  v.  Charles,  629. 

Bledsoe  v.   Irvin,  476. 

Blewitt  V.  Boorum,  68,  490. 

Bliss  V.  Lawrence,  354. 

Bliss  V.   Perryman,   174. 

Bliss  V,  Railroad  Co..  224. 

Bliven  v.  Lydecker,  339. 

Bliven  v.  Screw  Co.,    498. 

Blood  V.  Enos,  524. 

Blood  V.  Goodrich,  534. 

Blood  V.  Wilson,  540. 

Bloom  V.  Hazzard,  353. 

Bloom  V.  Richards,  328. 

Bloomer  v.  Bernstein,  573, 

Bloomer  v.  Henderson,  464. 

Bloomer  v.  Nolan,  196,  210. 

Bloss  V.  Bloomer,  317. 

Blossom  V.  Railway  Co.,  26. 

Blount  V.  Harvey,  472. 

Bloxam  v,   Sanders,  576. 

Bloxsome  v.  Williams,  412. 

Bluestone  Coal  Co.  v.  Bell,  252. 

Blythe  v.  Railroad  Co.,  537. 

Board  of  Com'rs  of  Bartholomew  Coun- 
ty V.  Jameson,  372. 

Board  of  Com'rs  of  Delaware  County  v. 
Diebold  Safe  &  Lock  Co.,  459. 

Board  of  Education  v.  Townsend,  592. 

Board  of  Education  of  Granville  Coun- 
ty V.  State  Board,  180. 

Board  of  Education  of  Illinois  v.  Green- 
baum,  241. 

Board  of  Highway  Com'rs  of  Blooming- 
ton  Tp.  V,  Bloomington,  626, 

Boardman  v.  Cutter,   126. 

Boardman  v,    Hayne,   463,   464, 

Boardman  v.  Spooner,  111,  499. 

Boardman  v.  Taylor,  338,  339. 

Boardman  v.  Thompson,  373. 

Boast  v.  Firth,  596,  648. 

Bobbitt  v.  Insurance  Co.,  267. 

Bobe's  Heirs  v.  Stickney,  549,  551,  552. 

Bock  V.  Perkins,  507. 

Bodenhofer  v.  Hogan,  353. 

Bofinger  v.  Tuyes,  490. 

Bogard  v.  Barhan.  108. 

Boggs  V.  Curtin,  519. 

Boggs  V.  Wann,  140. 

Bogie  V.   Bogie,  65. 

Bohanan  v.  Pope,  448. 

Bohn  Mfg.  Co.  v.  GoUis,  395. 

Boit   V.    Mavbin,   29. 

Bbland  v.  O'Neil,  382. 

Bolles  v.  Carli,  440. 

BoUes  V.  Sachs,  488,  503. 


Bollin  v.   Hooper,  333, 

Bollman  v.  Burt,  571. 

Bolton  V.  Lambert,  36. 

Bomar  v,  Rosser,  290. 

Bond  V,  Bond,  225. 

Bonelli   v.   Blakemore,  95. 

Bunicamp  v.  Starbuck,  80. 

Bonnewell  v.  Jenkins,  36. 

Bonney  v,  Morrill,  492. 

Bonsfield  v.  Wilson,  425. 

Bontelle  v.  Melendy,  333. 

Bonwell  v.  Howes,  379. 

Boody  T.  McKenney,  210,  214,  215. 

Book  V.  Mining  Co.,  120. 

Bool  V.  Mix,  187, 191,  204,  205,  211,  212, 

Boone,  In  re,  378. 

Boone  v.  Chiles,  375. 

Boone  v.  Eyre,  574. 

Booske  V,  Ice  Co,,  56, 

Booth  V.  Bank  v,  England,  323. 

Booth  V.  Mill  Co.,  591,  609,  610. 

Booth  V.  Powers,  001,  605. 

Booth  V,  Tyson,  568. 

Boothbay  v.  Giles,  63. 

Boothby  v.   Scales,   582. 

Boothe   V,   Fitzpatrick,   171,  172. 

Boozer  v.  Teague,  117. 

Borchsenius  v.   Canutson,  87. 

Borden  v.  Boardman,  446. 

Borden  v.  Railroad  Co.,  277. 

Bordentown  Tp.  v.  Wallace,  188. 

Borland  v.  Guffy,  35. 

Bosden  v.  Sir  John  Thenne,  171. 

Bosley  v.  Shanner,  299. 

Bostick  V.  Blades,  381. 

Bostick  V.  McClaren,  365. 

Boston  V.  Farr,  83. 

Boston  Ice  Co,  v.  Potter,  249,  250,  440, 
454,  646, 

Boston  Rubber  Co.  v.  Wringer  Co.,  616. 

Boston  Safe-Deposit  &  Trust  Co.  v.  Sa- 
lem Water  Co.,  443. 

Boston  &  M.  R.  Co.  v,  Bartlett,  39,  43. 

Boston  &  S.  Glass  Co.  v.  Boston,  302. 

Bostwick  V.  Bryant,  462. 

Bostwick  v.  Insurance  Co,,  293. 

Bostwick  V,  Leach,  94. 

Bostwick  v.  Mutual  Life  Ins,  Co.,  248. 

Bothwell  V.  Brown,  367. 

Bouchell  V,  Clary,  194,  199. 

Boucher  v.  Lawson,  436. 

Boulder  Valley  Ditch  Min.  &  Mill.  Co. 
V.  Farnham,  116. 

Boulton  V.  Jones,  250. 

Bour  V.  Kimball,  537. 

Bourlier  v.  Macauley,  442. 

Bourne  v.  Mason,  444. 

Boutelle  v.  Smith,  387. 

Bowdell  V,  Parsons,  562,  563. 

Bowditch  V.  Insurance  Co.,  321,  429.  ^ 

Bovvdoin  v.   Hammond,  334. 

Bowdoin  College  v.  Merrett,  300. 

Bowe  V.   Bowe,  308,  309. 

Bowe  V.  U.  S.,  180. 

Bowen  v.  Hall,  441. 

Bowen  v.  Kutzner,  269,  308. 

Bowen  v.   Railroad  Co.,  529. 

Bowen  v.  Tipton,  26,  152. 

Bower  v.  Blessing,  25. 


CASES    CITED 
[The  flgurea  refer  to  pages] 


661 


Bower  t.  Fenn,  285. 

Bower  v.  Stone  Co.,  461. 

Bowers  v.  Thomas,  248. 

Bowery  Nat.  Bank  v.  Wilson,  354. 

Bowes  V.  Shand,  514,  580,  582. 

Bowker  v.  Hoyt,  568. 

Bowker  v.  Lowell,  300. 

Bowling  V.  Blum,  364. 

Bowling  V.  Taylor,  398. 

Bowman  v.  Coffroth,  356. 

Bowman  v.  Neely,  338. 

Bowman  v.  Patrick,  144,  293. 

Bowman  v.  Taylor,  70. 

Bowser  v.  Bliss,  389,  391. 

Bowser  v.  Patrick,  508. 

Boyce  v.  Tabb,  437. 

Boyce's  Adm'r  v.  Smith,  226. 

Boyd  V.  De  La  Montagnie,  309. 

Boyd  V.    Eaton,  408. 

Boyd  V.  Gunnison,  512. 

Bovd  V,  Hanson,  431. 

Boyd  V.   Hind,  166. 

Boyd  V.  Hitchcock,  163. 

Boyd  V.  Lee,  185. 

Boyd  V.  Nebraska  ex  rel.  Thayer,  182. 

Boyd  V.  Paul,  107. 

Bovdell  V.   Drummond,  110. 

Bo'yden  v.  Boyden,  200,  210,  218. 

Boyden  v.    Hill,  524. 

Boyer  v.  Berryman,  227,  230. 

Boyer  v.   Boleuder,  628. 

Boyer  v.  Nesbitt,  379. 

Boyett  V.  Potter,  631. 

Boylan  v.  Railroad  Co.,  24. 

Boyle  V.  Adams,  362. 

Boylston  v.  Bain,  339. 

Boynton  v.  Ball,  617. 

Boynton  v.  Hubbard,  313. 

Boynton  v.   Moulton,  621. 

Boynton  v.  Page,  329. 

Boynton  v.  Veazie,  130. 

Boyson  v.  Thorn,  442. 

Bozeman  v.  Browning,  187. 

Bracegirdle  v.  Heald,  101. 

Brackett  v.  Blake,  354,  459. 

Brackett  v.  Griswold,  289. 

Brackett  v,  Mountfort,  603. 

Brackett  v.  People,  619. 

Bradburne  v.  Botfield,  481. 

Bradbury  v.  Place,  228. 

Bradford  v.  Chicago,  302. 

Bradford  v.  F6ster,  41,  42. 

Bradford  v.  Greenway,  238. 

Bradford  v.  Roulston,  172. 

Bradford  v.  Williams,  583. 

Bradlaugh  v.  Newdegate,  372. 

Bradley  v.  Ballard,  243. 

Bradley  v.  Irish,  304. 

Bradley  v.  King,  571. 

Bradley  v.  Owsley,  117. 

Bradley  v.  Pratt,  199. 

Bradley  v.  Rea,  333.  587. 

Bradner  v.  RolTsell,  577. 

Bradshaw  v.  Bradbury,  503. 

Bradshaw  v.  Davis,  ()16. 

Bradshaw  v.   Van  Winkle,  221, 

Brady  v.   10 vans,  289. 

Brady  v.  Finn,  284. 

Brady  v.  Horvath,  426. 


Brady  v.  Oliver,  543. 

Bragg  V.  Danielson,  525. 

Bragg  V.  Wetzel,  476. 

Braitch  v.  Guelick,  408. 

Brakefield  v.  Anderson,  114,  120. 

Braley  v.  Kelly,  111. 

Braley  v.  Powers,  286. 

Braman  v.  Bingham,  68. 

Brandon  v.  Brown,  215. 

Brands  v.  De  Witt,  91. 

Brandt  v.  Railroad  Co.,  554. 

Branson  v.   Kitchenman,  137. 

Branson  v.  Turner,  582. 

Brant  v.  Johnson,  85. 

Brantley  v.  Wolf,  222. 

Brauer  v.  Shaw,  32,  33,  42. 

Braun  v.  Keally,  326.  433. 

Brawley  v,  U.  S.,  150. 

Brawner  v.  Franklin,  214. 

Brayshaw  v.  Eaton,  198. 

Brazee  v.  Bryant,  329. 

Bream  v.  Dickerson,  469. 

Breckenridge's    Heirs    v.    Ormsby,    203, 

227. 
Breckinridge  v.  Crocker,  107. 
Bredin's  Appeal,  407. 
Breed  v.  Judd,  194,  195. 
Breeden  v.   Frankfort  Marine,   Accident 

&  Plate  Glass  Ins.  Co.,  371,  372. 
Breen  v.  Moran,  495,  588. 
Breese  v.  Telegraph  Co.,  404. 
Breitling  v.  Marx,  65. 
Brengle  v.  Bushey,  71. 
Brennan  v.  Chapin,  23. 
Breunan  v.   Clark,  516. 
Brent  v.  Cook,  497. 
Bresee  v,  Stanly,  208. 
Bressey's  Adm'r  v.  Gross,  224. 
Bret  V.  J.  S.,  135. 
Bretto  V.  Levine,  492. 
Brewer  v.  Horst  &  Lachmund  Co.,  110. 
Brewer  v.  Marshall,  471. 
Brewer  v.  Mauerer,  450. 
Brewer  v.  Sparrow,  633. 
Brewster  v.  Banta,  333. 
Brewster  v.  Edgerly    517. 
Brewster  v.  Hatch,  269. 
Brewster  v.   Leith,   130. 
Breyfogle  v.  Walsh,  294. 
Breyman  v.  Railroad  Co.,  510. 
Brice  v.  Bannister,  463. 
Brice  v.  King,  448. 
Brick  Presbyterian  Church  v.  New  York, 

593. 
Bridgers  v.  First  Nat.  Bank,  379. 
Bridges  v.  Stickney,  610. 
Briggs  V.  Boyd,  635. 
Briggs  V.  Latham,  138. 
Briggs  V.  McCabe,  191. 
Bri-gs  v.   Sizer,   18,   35. 
Briggs  V.  Steel,  552. 
Briggs  V.  Tillotson,  146. 
Briggs  V.   U.   S.    120. 
Brigham  v.  Carlisle,  611. 
Brigham  v.  Fayerweather,  229. 
Brigham  v.  Herrick,  493. 
Brigham  v.  Pahr.er,  4S6. 
Bright  V.  McKnight,  30. 
Brill  V.  Rack,  294. 


662 


CASES  CITED 
[Th«  figures  refer  to  pages] 


Brill  V.  Tuttle,  4G3. 

Brinker  v.  Scheunemann,  433. 

Brinkley  v.  Swicegood,  607. 

Brinton  v.  Van  Cott,  116. 

Brisbane  v.  Dacres,  636. 

Briscoe  v.  Reynolds,  601,  605. 

Bristol  V.  Braid  wood,  285. 

Bristol  Aerated  Bread  Co.  v.  Maggs,  35. 

Bristol  Sav.  Bank  v.  Stiger,  489. 

Bristow  V.  Lane,  448. 

Bristovv  V,  Sequeville,  436. 

Britain  v.   Rossiter,   101,  114,  115, 

British   Columbia  &   Vancouver's  Island 

Spar,  Lumber  &  Saw-Mill  Co.  v.  Net- 

tleship,  610. 
British  Waggon  Co.  v.  Lea,  454,  458. 
British  &  Am.  Tel.  Co.  v.  Colson,  32. 
Britt  V.  Hays,  607. 
Brittain  v.  Aingier,  108. 
Brittain  v.  Daniels,  71. 
Brittain  v.  Lloyd,  170. 
Britton  v.  Dierker,  602. 
Britton  v.  Phillips,  38. 
Britton  v.  Turner,  57U. 
Broadnax  v.  Ledbetter,  49. 
Broadwater  v.  Darne,  234. 
Broadwell   v.  Getman,  100. 
Brockway  v.  Express  Co.,  434. 
Brockway  v.  Frost,  108. 
Brockway  ^.  Harrington,  144. 
Brogden  v.  Marriott,  342. 
Brogden  v.  Railway  Co.,  27,  28,  29,  31. 
Bronson  v.  Herbert,  25. 
Bronson    Agricultural    &    B.    Ass'n    v. 

Ramsdell,  343. 
Brooke  v.  Filer,  183. 
Brooke  v.  Logan,  384. 
Brooker  v.  Scott,  193. 
Brooklyn  Bank  v.  De  Grauw,  555. 
Brooks  V.  Avery,  335. 
Brooks  V.  Ball,  140,  143. 
Brooks  V.  Berryhill,  304. 
Brooks  V.  Hamilton,  268,  270. 
Brooks  V.  Martin,  269,  425. 
Brooks  V.   Sawyer,  221. 
Brooks  V.  Stuart,  478. 
Brooks  V.  Wage,  151. 
Brooks  V.  White,  163,  164. 
Brooks  V.  Wichita,  518. 
Brosnan  v.  IMcKee,  93. 
Brothers  v.  Bank,  224. 
Broumel  v.  Rayner,  569. 
Brower  v.  Callender,  298. 
Fisher,    225. 
Goudyer,   274. 
Adams,    138. 
Bank,  111,  151,  337,  339,  353, 


Brower  ^ 
Brower  ^ 
Brown  v 
Brown  v 

365. 
Brown  v 
Brown  v 
Brown  v 
Brown  v 
Brown 


y. 


Beckwith,  .504. 

Benight,  477. 

Bennett,   174. 

Bigne,  370. 

Brown,   66,   67,  68,  225,  339, 
355,  382. 
Brown  v.  Browning,  328,  433. 
Brown  v.   Burbank.  307,  308. 
Brown  v.  Burns,  549. 
Brown  v.  Byrne,  496.  - 
Brown  v.  Caldwell,  191. 


V.  Curtiss,  87. 

Duncan,  323. 
V.  Dysinger,  555. 
V.     Everett-Ridley-Ragan 


Co. 


Brown 
Brown 
Brown 
Brown 
429. 

Brown  v.  Everhard,  526,  533. 
Brown  v.  Farmers'   &  Merchants'    Nat 

Bank,  82. 
Brown  v.  Farnham,  166. 
Brown  v.  Finance  Co.,  432,  433. 
Brown  v.  Foster,  500,  .^41. 
Brown  v.  Fowler,   109. 
Brown  v.  Gardner,  335. 
Brown  v.   Hoag,   117. 
Brown  v.   Hodgson,  029. 
Brown  v.  Jordhal,  65. 
Brown  v.   Kern,   162. 
Brown  v.    Kinsey,    377. 
Brown  v.  Latham,  136. 
Brown  v.  Leach,  284. 
Brown  v.  Levy,  246,  255,  277. 
Brown  v.  Lumber  Co.,  525,  526. 
Brawn  v.   McCreight,   367. 
Brown  v.  McCuue,  221. 
Brown  v.  McKee,  480. 

V,  Mark  land,  494. 
V.  Miles,  227. 
V.  Neally,  318. 

V.  New  York  Central  R.  Co.,  36. 
v,  Norman,  293,  294, 
V.  Odill,  383,  563. 
V.  Peck,  305. 
V.  Pinkham,  603. 
Pitcairn,  292. 
Pollard,  115,  116. 
Railway  Co.,  651. 
Rice,  25. 
Bruwn  V.  Road  Co.,  638. 
Brown  v.  Safe-Deposit  Co.,  513,  514. 
V.  Savings  Union,  41. 
V.  Speyers,  361. 
V.  Stillman,  450. 
V.  Sutton,  117. 
V.   Telegraph   Co.,   404. 
V.   Trust   Co.,   79. 
Brown  v.  Tuttle,  646. 
Brown  v.  Vandyke,  337. 
Weldon,  588. 
Wheeler,  271. 
Wheelock,   188. 
Worthington,    299. 
Brown  Chemical  Co.  v.  Atkinson,  495. 
Brown  University  v.  Rhode  Island  Col- 
lege, ISO. 
Brown  «fe  Haywood  Co,  v.  Wunder,  125. 
Brownell  v.  Harsh,  151. 
Brownell  v.  Winnie,  603. 
Browning  v.  Berry,  103. 
Browning  v.  Crouse,   615. 
Browning  v.  Insurance   Co.,  267. 
Browning  v.  Morris,  429. 
Browning  v.   Parker,  114. 
Brownlee  v.  Lowe,  161. 
Brua's  Appeal,  344. 
Bruce   v.  Bishop,  25,  36.  51. 
Bruce  v.  Lumber  Co.,  491. 
Bruce  v.  Pearson.  37. 
Bruecher  v.  Port  Cliest_er,  302. 
Bruen  v.  Marquard,  479. 


Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 
Brown  v. 


Brown 
Brown 
Brown 
Brown 
Brown 
Brown 


Brown 
Brown 
Brown 
Brown 


CASES    CITED 
[TIi«  flgurea  refer  to  pages] 


663 


Brumby  v.  Smith   595. 

Brummitt  v,  McGuire,  638. 

Brun  V.  Brun,  382. 

Brundage  v.  Port  Chester,  631. 

Brunnell  v.  Sawmill  Co.,  498. 

Brush  V.  Carbondale,  373,  375. 

Brush  V.  Sweet,  374. 

Bryan  v.  Brazil,  161. 

Bryan  v.  Foy,  161. 

Bryan  v.  lieyuolds,  355,  356. 

Biyan  v.   Wash,  66. 

liryan  v.   Watson,   331. 

Bryant  v.  Booze,  32,  331. 

Bryant  v.   Isburgh,  581. 

Bryant  v.  Ocean  Ins.  Co.,  260. 

Bryant  v.  Peck,  302,  304. 

Bryant  v.  Pember,  587. 

Bryant  v.  Richardson,  195. 

Bryson  v.  Haley,  416. 

Buchanan  v.  Bank,  433. 

Buchanan  v.  Hubbard,  210,  212. 

Buchanan  v.  Insurance  Co.,  342,  343. 

Buchanan  v.  Moran,  88. 

Buchanan  v.  Tilden,  447,  449. 

Buck  V.  Bank.  364. 

Buck  V.   Biddeford,  331. 

Buck  V.  Burk,  505. 

Buck  V.  Coward,  389. 

Buckey  v.  Buckey,  224. 

Buckingham  v.   Ludlum,  146. 

Buckley  v.  Beardslee,  108. 

Buckley  v.  Humason,  326. 

Buckner  v.   Anderson,   92. 

Buckner  v.  Smith,  463,  464. 

Budd  V.  Hiler,  632. 

Budd  V.  Rutherford,  366. 

Buel  V.  Milkr,  533. 

Buel  V.  Chapin,  546. 

Buffalo  V.  O'M alley,  638,  639. 

Buffalo  Barb-Wire  Co.  v.   Phillips,  610. 

Buffalo,  E.  S.  R.  Co.  v.  Railroad  Co., 
593. 

Buffalo,  etc..  Land  Co.  v.  Bellevue  Land, 
etc.,  Co.,  598. 

Buffendeau  v.  Brooks,  420,  488. 

Buffington  v.  Gerrish,  296. 

Buford  V.  Tucker,  497. 

Bugbee  v.  Kendricken,  84. 

Bughman  v.  Bank,  274. 

Buhl  V.  Stephens,  121. 

Building  &  Loan  Ass'n  of  Dakota  t.  Lo- 
gan, 436. 

Bulkley  v.  Devine,  493. 

Bulkley  v.  Fishing  Co.,  242. 

Bulkley  v.  Landon,  170. 

Bull  V.  Hopkins,  619. 

Bull  V.  Rice,  335. 

Bull  Remedy  Co.  v.  Clark,  002. 

Bullion  &  Exchange  Bank  v.  Otto.  120. 

Bullitt  V.  Farrar,  285. 

Bullock  V.  Adam's  Ex'rs,  513. 

Bullock  V.  Lumber  Co.,  503. 

Bullock  V.  Sprowls,  216. 

Bullock  V.  Tschergl,  129. 

Bullock  V.  Turnpike  Co.,  96. 

P>iilow  V.  Goddard,  635. 

P'undy  V.  Newton,  .371. 

Bunge  V.  Koop.  558. 

Bunker  y.  Hodgson,  593. 


Bunn  V,   Guy,  392. 

Bunn  V.  Riker,  342. 

Bunn  V.  Winthrop,  377. 

Bunneman  v.  Wagner,  987. 

Burbridge  v.  Fackler,  355,  358. 

Burch  V.  Breckinridge,  239. 

Burch field  v.  Moore,  587,  601,  641. 

Burck  V.  Taylor,  459. 

Burden  Bank  v.  Phelps,  363. 

Burdett  v.  Williams,  208,  221. 

Burger  v.  Koelsch,  327. 

Burger  v.  Rice,  453. 

Burges  v.  Wickham,  494. 

Burgess  v.  Carpenter,  441. 

Burgess  v.   Pollock,   226. 

Burgess  Sulphite    Fibre   Co.    ».    Broom 

field,   150. 
Burghart  v.  Angerstein,  193,  195. 
Burghart  v.  Hall,  196. 
Burho  V.  Carmichael,  366. 
Burk  V.  Johnson,  281. 
Burke  v.  Adams,  66. 
Burke  v.  Allen,  231. 
Burke  t.  Miller,  486. 
Burke  v.  Railway  Co.,  24. 
Burke  v.  Taylor,  144,  308. 
Burke  v.   Wood,  355. 
Burkett  v.  Moses,  458. 
Burkhardt  v.  School  Tp.,  594. 
Burkholder  v.  Casad,  66. 
Burkle  v.  Levy,  293. 
Burks  V.  Albert,  550. 
Burlen  v.  Shannon,  61. 
Burley  v.  Russell,  221. 
Burlingame  v.  Brewster,  601. 
Burlington  Lumber  Co.  v.   Lumber  Co., 

247. 
Burn  V.   Carvalho,  462. 
Burnard  v.  Haggis,  221. 
Burnes  v.  Allen,  71. 
Burnes  v.  Scott,  375,  490. 
Burnet  v.  Bisco,  137,  138,  149. 
Burnett  v.  Burnett,  66. 
Burnett  v.  Crandall,  461. 
Burnett  v.  McCluey,  65. 
Burnett  v.  Telegraph  Co.,  330. 
Burney's  Heirs  v.  Ludeling,  .359. 
Burnham  v.  Kidwell,  224,  227,  230. 
Burnham  t.  Mitchell,  225. 
Burns  v.  Bradford-Kennedy  Lumber  Co., 

83. 
Burns  v.  Dockray,  292. 
Burns  v.  Lane,  284. 
Burns  v.  McFarland,  524. 
Burns  v.  Mahannah,  282. 
Burns  v.  Moore,  328,  330. 
Burns  v.  Real-Estate  Co.,  79.  534. 
Burns  v.  Smith,  191. 
Burns  &    Smith    Lumber    Co.   v.  Doyle, 

490,   491. 
Burr  V.  Beers,  450. 
Burr  V.  Sickles,  546. 
Burr  V.  Willson,  289. 
Burrell  v.   Highlevman,   124. 
Burrell's  Case,  280. 
Burrill  Vi  Stevens,  274,  275. 
P.nrritt  v.  Insurance  Co.,  266,  267. 
P.urrou^lis  v.  (Jnnno  Co.,  285. 
Burrows  v.  Ward,  23. 


664 


GASES   CITED 
[Tli«  flcuraa  refer  to  pages] 


Burrows  T.  Wene,  292. 

Burrus  v.   Witcover,  434. 

Burt  V.  Meyer,  344. 

Burt  V.  Place,  425. 

Burt  V.  Quisenberry,  313. 

Burtis  V.  Thompson,  558,  559, 

Burton  v.  Belvin,  377. 

Burton  v.  Driggs,  633.  634, 

Burton  v.   Henry,  480. 

Burton  v.  Larkin,  449. 

Burton  v.  Leroy,  65. 

Burton  v.  xMarshall,  236. 

Burton  v.  Shotwell,  40. 

Burton  v.  U.  S.,  31. 

Burwell  v.  Burgwyn,  61. 

Busby  V.  Bush,  493. 

Busch  V.  Wilcox,  275. 

Buschman  v.  Codd,  279,  286,  289. 

Bush  v.  Breinig,  234. 

Bush  V.  Brown,  305. 

Bush  V.  Holmes,  127. 

Bush  V.  Linthicum,  201,  206. 

Bush  V.  Merriman,  501, 

Bush  V.  Rawlins,  157. 

Busher  v.  New  York  Life  Ins.  Co..  17. 

28,  33. 
Bushnell  v.  Bushnell,  628. 
Bussing  V.   Rice,  296. 
Buswell  V.  Bicknell,  535. 
Butcher  v.  Andrews,  83. 
Butler  V.  Barnes,  470. 
Butler  V.  Breck,  187. 
Butler  V.  Burleson,  391. 
Butler  V.  Dinan,  114. 
Butler  V.  Duncan,  313. 
Butler  V.    Eschleman,   276. 
Butler  V.  Kemmerer,  54,  55. 
Butler  V.  Lee,  331. 
Butler  V,  Legro,  375. 
Butler  V.  Miller,  600. 
Butler  V.  Wigge,  509. 
Butler's  Appeal,  273. 
Butler  and  Baker's  Case,  40,  67. 
Butterfield  v.  Bryon,  505. 
Butterfield  v.  Hartshorn,  529. 
B-utters  v.  Haughwout,  296. 
Buxton  V.  Lester,  613. 
Byers  v.  Chapin,  581. 
Byrd  v.  Bertrand,  529. 
Byrd  v.  Hughes,  378. 
Byrne  v.  Cummings,  134,  589. 
Byrne  v.  Tienhoven,  42. 
Byrnes  v,  Claffey,  549. 
Byxbie  V.  Wood,  459. 


Cable  V.  Foley,  303. 
Cable  V.  Insurance  Co.,  2P>7. 
Cabot  V.  Christie.  285,  286. 
Cabot  V.  Kent,  514. 
Cadman  v.  Markle,  119. 
Cadwallader  v.  West.  225,  309. 
Cagney  v.  Cuson,  279. 
Cahill  V.  Bigelow,  84,  120. 
Cain  V.  Dalv,  329. 
Cain  V.  Vogh,  550. 
Jain  T.   Warford,   225. 
Caldwell  v.  Layton,  506. 


Caldwell  v.  Myers,   586. 

Caldwell  v.   School   Dist.,  55. 

Caldwell  t.  Walters,  236. 

Caldwell  t.   Wentworth,  549. 

Calhoun  v.  Atchison,   31. 

Calhoun  v.  Phillips,  329. 

California  Nat.  Bank  v.  Kennedy,  243. 

Calkins  v.  Chandler,  151,  152. 

Callahan  v.  Stanley,  496. 

Callan  v.  McDaniel,  469. 

Callanan  v.  Chapin,  113. 

Callanan  v.  Edwards,  463. 

Calland  v.  Loyd,  636. 

Callis  V.  Day    190,  209,  210,  213. 

Callisher  v.  Bishchoffshcim,   154,  155. 

Callo  V.  Brouncker,  538. 

Camden  Iron-Works  v.  Fox,  514. 

Cameron  v.  Durkheim,  3G1. 

Cameron-Barkley  Co.  v.  Thornton  Light 
&  Power  Co.,  223,  233,  234. 

Caminada  v.  Hulton,  347. 

Cammerer  v.  Muller,  383. 

Camors-McConnell     Co.     v.    McConnell, 
416. 

Camp  V.  Bruce,  319. 

Camp  V.  Camp,  92. 

Camp  V.   Telegraph  Co.,  404. 

Camp  v.  U.  S.,  179. 

Campanari  v.  Woodburn,  46. 

Campbell  v.  Board  of  Com'rs,  458. 

Campbell  v.  Clay,  529. 

Campbell  v.  Floyd,  530. 

Campbell  t.   Insurance   Co.,   267. 

Campbell  v.   Jones,  68,  574. 

Campbell  v.  Kuhn,  231. 

Campbell  v.  Moran  Bros.  Co.,  576. 

Campbell  v,  I'erkins,  220. 

Campbell  v.  Potter,  612. 

Campbell  v.  Richardson.  342. 

Campbell  v.  Segars,  326. 

Campbell  v.   Stakes,  220,  221. 

Campbell  v.  Thomas,  68. 

Campbell  v.   Van  Houten,  246. 

Campbell  v.  Young,  332. 

Campbell  Printing-Press    Co.    v.   Thorp. 

542. 
Campbell's  Estate,  In  re,  525. 
Cam  pell  v.   Holt    621. 
Canadian  Fish  Co.  v.  McShane,  617. 
Canadian  Pac.  R.  Co.  v.  Telegraph  Co., 

361. 
Canajoharie    Nat.    Bank    v.    Diefendorf, 

422 
Canal  Com'rs  v.  People,  509. 
Candee  v.  Telegraph  Co.,  404. 
Canedy  v.  Marcy,  257. 
Cannam  v.  Farmer,  237. 
Cannan  v.  Bryce,  417. 
Canning  v.  Farquhar,  52. 
Cannon  v.  Alsbury,  191. 
Cannon  v.  Handley,  113. 
Cannon  v.  Lindsey.  246. 
Cannon  v.  Ryan,  329. 
Canon  v.  Grigsby,  605. 
Canterberry  v.  Miller,  505. 
Canterberry  v.  Sparta,  34. 
Cantine  v.  Phillips"  Adm'r.  198. 
Canton  Co.  v.  Railroad  Co.,  36, 
Canty  T.  Latterner,  4(3a 


CASES    CITED 
[The  figures  refer  to  pages] 


665 


Capehart  t.  Carradine,  276. 

Capehart  v.  Rankin,  361. 

Capen  v.  Barrows,  521. 

Caperton's  Adm'rs  v.  Caperton,  505. 

Capitol   City    Brick    Co.    v.  Atlanta   Ice 

&  Coal  Co.,  103.  111. 
Carbon   Hill   Coal   Co.   v.    Cunningham, 

Q4S. 
Card  V.  Hope,  351.  352. 
Cardell  v.  McNiel,  87. 
Cardwell  v.  McClelland,  277. 
Carew  v.  Rutherford,  400,  635. 
Carey  v.  Hess,  174,  175. 
Carey  v.  Mackey,  382. 
Carleton  v.  Woods,  408. 
Carlill  V.   Carbolic    Smoke-Ball   Co.,  48. 
Carlill  V.  Smoke-Ball  Co.,  28. 
Carlisle  v.  Campbell,  So,  112. 
Carlton  v.  Hulett,  294. 
•Carlton  v.  Railroad  Co.,  161. 
Carman  v.  Pultz,  555. 
Carmen  v.  Pultz,  555. 
Carnahan  v.  Bailey,  274, 
Carnegie  v.  Holt,  609. 
Carnegie  v.  Morrison.  447. 
Carney  v.  Carney,  117. 
Carnig  v.  Carr,  56,  98. 
Carolina    Interstate    Building    &    Loan 

Ass'n  V,  Black,  221. 
Carpenter  v.  Carpenter.  53,  205,  225. 
Carpenter  v.  Comings,  90. 
Carpenter  v.  Galloway,  534. 
Carpenter  v.  Medford,  56. 
Carpenter  v.  Rodgers,  233. 
Carpenter  v.  Wright,  283. 
Carr  v.  Clough,  205.  214>. 
Carr  v.  Davis,  365. 
Carr  v.  Duval,  38.  45. 
Carr  v.  McCarthy.  97. 
Carrell  v.  Potter,  201,  20a 
Carrier  v.  Sears,  227,  23L 
Carrl  v.  Snyder,  390. 
Carrol  v.  Blencow.  238. 
Carroll  v.  People,  293. 
Carroll  v.  Tyler,  353. 
Carroll  Co.  Sav.  Bank  v.  Strother,  837. 
Carson  v.  Clark.  171. 
Carson  v.  Cochran,  70.  640. 
Carson  v.  Lucas,  50. 
Carstens  v.  McDonald,  561. 
Carstens  Packing  Co.   v.  Southern  Pac. 

Co.,  435. 
Carter  v.  Ailing,  389. 
Carter  v.  Carter,  481. 
Carter  v.  Coal  Co.,  498. 
Carter  v.  Harden,  286. 
Carter  v.  Insurance  Co.,  457. 
Carter  v.  Nichols,  460. 
Carter  v.   Phillips,   513.   579. 
Carter  v.  Scargill,  584. 
Carter  v.  Strom,  518. 
Carter  v.  West.  309. 
Carthrae  v.  Brown.  4«S0. 
Cartwright  v.  Cartwright,  382. 
Carver  v.  Jackson,  70. 
Cary  v.   Hotailing,  292. 
Case  v.  Ayers,  285. 
Case  V.  Fant.  549. 
Case  V.  Seass,  547. 


Case  v.  Seger,  93. 

Case  Mfg.  Co.  v.  Soxman,  546. 

Case  Threshing  Mach.  Co.  v.  Mattingly, 

247. 
Case  Threshing    Mach.    Co.    t.    Meyers, 

234. 
Case  Threshing    Mach.     Co.    v.    Smith, 

111. 
Casey  v.  Casey,  269,  307. 
Casey  v.  Miller,  529. 
Cason  V.  Cason,  282. 
Cason  V.  Cheely,  123. 
Caspar!  v.  Church.  309. 
Cass  County  Bank  v.  Bricker,  367. 
Casserleigh  v.  Wood,  140.  :;73. 
Cassidy,  Succession  of,  470. 
Castle  V.   Kemp,  292. 
Castner  v.  Richardson,  113. 
Catawissa  R.  Co.  v.  Titus,  480. 
Cates  V.  Bales,  141. 
Catlett  V.  Trustees,  331. 
Catlin  V.  Tobias,  569,  573. 
Catling  V.  King,  104. 
Caton  V.  Caton,  90,  111,  117, 
Caton  V.  Shaw.  30. 
Caton  V.  Stewart,  357. 
Catts  V.  Phalen.  634. 
Caulkins  v.  Fry,  234,  235. 
Caulkins   v.    Hellman.    127.    12a 
Cavanagh  v.  Iowa  Beer  Co..  577,  582. 
Cavanagh  v.  Marble,  548. 
Cavanaugh  v.  Jackson.  92. 
Cavendish  v.  Greaves.  464. 
Caveriy-Gould    Co.    v.    Springfield,    505, 

511. 
Cawthorne  v.  Cordrey,  101. 
Caylor  v.  Roe.  90.  119. 
Cayzer  v.  Taylor,  499. 
C.  C.  Emerson  &  Co.  v.  Stevens  Grocer 

Co..  53. 
Cecil  V.   Spurger.  277. 
Central  Lith.  &  E.  Co.  v.  Moore,  12.5. 
Central    New    York    Telephone    &   Tele- 
graph Co.  v.  Averill,  358. 
Central  Ohio  Salt  Co.   v.   Guthrie,  394. 
Central  R.  Co.  v.  Anderson,  499. 
Central   R.   Co.   of   Venezuela   v.   Kisch, 

283. 
Central    Shade   Roller  Co.   v.   Cushman, 

396. 
Central    Transp.    Co.    v.    Car    Co.,   242, 

360,   643. 
Central  Trust  Co.  v.  Bank,  467. 
Central  Trust  Co.  v.  Burton,  432, 
Central  Trust  Co.  v.  Manufacturing  Co., 

588. 
Cesar  v.   Karutz,  277. 
Chace  v.  Chapin,  446. 
Chadsey  v.   Condley,  41. 
Chadsey  v.  Guion,  510. 
Chadwick  v.  Knox.  356,  3.57. 
Chaffee  v.  Thomas,  170,  17L 
Chalfant  v.  Pavton,  381. 
Challenge    Wind    &    Feed    Mill    Co.    t. 

Kerr,  40. 
Chamberlain  t.  Grimes,  375. 
Chamberlain  v.  Railroad   Co.,   308. 
Chamberlain  v.  Williamson,  474. 
Chamberlin   v.   Fuller,    283. 


666 


CASES    CITED 
[The  figures  refer  to  pages] 


Chamberlin  v.  Oilman,  4G2. 

Chambers  v.  Baldwin,  442, 

Chambers  v.  Ker,  202. 

Chambers  v.  Lancaster,  461, 

Chambers  v.  Miller,  639. 

Chambers  v.   Railroad  Co.,  643. 

Chambliss  v.  Matthews,  4b-L 

Champenois  v.  Fort.  548. 

Champlin    v.    Parrish,    112. 

Champlin  v,  Rowley,   568,  649. 

Chancely  v.  Bailey,  419. 

Chandler  v.  Johnson,  3G6,  407. 

Chandler  v.  Marsh,  589. 

Chandler  v.  Sanger,  302.  634.  635. 

Chandler  v.  Simmons,  203,  215. 

Changler  v.  Simmons,  202. 

Chanter  v,  Hopkins,  580,  583. 

Chanter  v,  Leese,  479,  480. 

Chapin  v.  Brown,  385. 

Cliapin  V.  Chapin,  555. 

Chapin  V.  Dobson,  492. 

Chapin  v.  Longworth,  453,  458, 

Chapin  v.  Shafer,  205,  211. 

Chaplin  v.  Rogers.  128. 

Chapman  v.  Brooklyn.  590. 

Chapman  v.  Chapman,  21. 

Chapman  v.  Dease,  19. 

Chapman  v.   Hughes,   198. 

Chapman  v.   J.    W.    Beltz   &   Sons    Co., 

558. 
Chapman  v.  Persinger's  Ex'x,  70. 
Chapman  v.   Rose,  249. 
Chapman  v.  Sutton,  631. 
Chapman  &  Dewey  Land  Co.  v.  Wilson, 

513. 
Chappel  T.  Brockway,  388. 
Chappell  V.  Spencer,  003. 
Chappie  V.  Cooper,  194,  198,  645, 
Charles  v.  Hastedt,  222. 
Charles  v.  Scott,  71. 
Charles  Green's   Sons  v.  Salas,  182. 
Charleston  Natural  Gas  Co.  v.  Kanawha 

Natural  Gas,  Light  &  Fuel  Co..  358, 

394. 
Charley  v.  Potthoff.  584. 
Charlton  v.   Reed,  602. 
Chase  v.  Day,  84. 
Chase  v.  Fitz,  90,  474. 
Chase  v.  Henry,  479. 
Chase  V.  Hinkley,  98,  99,  101. 
Chase  Nat.  Bank  v.  Faurot,  335, 
Chase's  Ex'rs  v.  Burkholder,  408, 
Chateau   v.   Singla,  414. 
Chateaugay    Ore  &   Iron   Co.    v.    Blake, 

498. 
Chatham   Furnace   Co.   v.   Moffatt,   285, 

2S(i. 
Cheddick's    Ex'r  v.   Marsh,   516. 
Cheek   V.  Bellows,  238. 
Cheltenham  Stone  &  Gravel  Co.  v.  Gates 

Iron  Works,  546,  547. 
Chemical  Co.  of  Canton  v.  Pegram,  482. 
Chemical    Electric    Light   &   Power   Co. 

V.  Howard,  587. 
Chenault  v.  Bush.  588. 
Cheney  v.  Cook,  43. 
Cheney  v.  Duke,  416. 
Cheney  v.  Libby,  513. 
Cheney  v.  Transportation  Line,  36. 


Cherbonnier  v.   Evitts,  310. 

Cherokee  Tanning  Extract  Co.  v.  West- 
ern Union  Tel.  Co.,  51,  52,  54. 

Cherry   v.  Colonial  Bank    270, 

Chesapeake  &  O.  Canal  Co.  v.  Hill,  505. 

Chesapeake  &  O,  Canal  Co.  v.  Kay,  533. 

Chesapeake  &  P.  Telephone  Co.  y.  Tele- 
graph Co.,  360. 

Chesebrough  v.  Conover,  356. 

Cheshire  v.  Barrett,  210. 

Chesterfield  v.  Jansen,  312, 

Cheuvront  v.  Horner,  431. 

Cheveront  v.  Textor,  166,  318. 

Chicago  V.   Til  ley,   503. 

Chicago  Attachment  Co.  v.  Sewing  Macb. 
Co.    92    115. 

Chicago 'Bldg.'&  Mfg.  Co.  v.  Barry,  560. 

Chicago  Bldg.  &  Mfg.  Co.  v,  Graham, 
521. 

Chicago,  B,  &  I,  R,  Co.  v,  Provolt,  459; 

Chicago,  B.  &  Q.  R.  Co.  v.  Aurora,  509, 

Chicago,  B.  &  Q.  R.  Co.  v.  Bell,  349. 

Chicago,  B.  &  Q.  R,  Co.  v.  Provolt,  508. 

Chicago  Dock  Co.   v.  Kinzie,  114.  120. 

Chicago  Flour  Co.  v.  Chicago,  504. 

Chicago  Gas-Light  &  Coke  Co.  v.  Coke 
Co.,   358. 

Chicago,  I.  &  L.  R.  Co.  v.  Southern  In- 
diana Ry.  Co..  300.  407. 

Chicago,  M.  &  St.  P.  Ry.  v.  Clark,  161, 
104. 

Chicago,  S.  F.  &  C.  R.  Co.  v.  Price, 
577. 

Chicago,  St.  P..  M.  &  O.  R.  Co.  v.  Bel- 
liwith,   246,  247. 

Chicago  &  G.  E.  R,  Co.  v.  Dane,  39,  40, 
148. 

Chick  V.  Trevett,  141. 

Chicora  Fertilizer  Co.  v.  Dunan,  164. 

Childers  v.  Bank,  510. 

Childers  v.  Wm.  H.  Coleman  Co.,  94. 

Childs  V.  Merrill,  279,  294, 

Chilton  V.  People,  63. 

Chipley  v.  Atkinson,  441. 

Chippewa  Valley  &  S.  R.  Co.  v.  Railway 
Co.,  355. 

Chowne  v.  Baylis,  634. 

Chrisman  v.  Hodges,  527. 

Chrisman  v.  Miller,  579. 

Christian  College  v.  Hendley,  147. 

Christie  v.  Bridgman,  174. 

Christie  v.  Craige,  616. 

Christie  v.  Scott,  552. 

Christv  V,  Sullivan,  256,  640. 

Chrysler  v.   Canaday,  279,   283. 

Chubbuck  v.  Cleveland,  287. 

Chudnovski  v.  Eckels,  624. 

Chung  Kee  v.  Davidson,  449. 

Church  V.  Fowle,  604. 

Church  V.  Gas  Co.,  241.  '    ' 

Church  V.  Proctor,  418. 

Churchill  v.  Bradlev.  142.  > 

Churchill  v.  Holt,  028. 

Churchill  v.  Scott.  311. 

Chute   v.   Quincy,   292.   501. 

C.   H.  Young  Co.  v.  Springer,  245,  246. 

Chytraus  v.  Smith.  32. 

Cicotte  v.  Church  of  St.  Anne,  50,  646. 


CASES    CITED 
[The  flgurea  refer  to  pages] 


667 


Cincinnati     Northern    Traction     Co.    v. 

Rosnagle,  545. 
Citizens'   Bank  v.   Grafflin,  637. 
Citizens*  Bank  y.  Rudisill,  638. 
Citizens'  Bank  v.  Scbwarzschild,  639. 
Citizens'  Building    Ass'n    v.    Cummings, 

65. 
Citizens'  Fire  Ins.  Security  &  Land  Co. 

V.  Doll,  510. 
Citizens'  Nat.    Bank  v.   Richmond,   601. 
Citizens'  Nat  Bank  v.  Smith,  249. 
Citizens'   Sav.  Bank  &  Trust  Co.  v.  Bab- 
bitts' Estate,  152. 
€itty  V.  Manufacturing  Co.,  120. 
City  Nat.  Bank  of  Dayton  v.  Kusworm, 

304,   313. 
City  of  Aurora  v.  West,  422. 
City  of  Baltimore  v.  Hughes,  628. 
City  of  Chicago  v.   Pittsburg,   C,   C.  & 

St.  L.  R.  Co.,  10. 
City  of  Chicago  v.  Weir,  510. 
City  of  Cincinnati  v.  Coke  Co.,  510. 
City  of  Elgin  v.  Joslyn,  496. 
City  of  Elizabeth  v.  Fitzgerald,  543. 
City  of  Elizabeth  v.   Force,  601. 
City  of   Greenville   v.    Waterworks   Co., 

103. 
City  of  Minneapolis  v.  Reum,  182. 
City  of  New   Britain  v.  Telephone  Co., 

516. 
City  of  New  Orleans  v.  Texas  &  P.  R. 

Co.,  566. 
City  of  Newport  News  v.  Potter,  451. 
City  of  New  York  v.  Railroad  Co.,  509. 
City  of  Ottawa  v.  Bank,  70. 
City  of  Philadelphia  v.  Reeves  &  Cabot, 

476,  520. 
City  of  Pittsburg  v.  Goshorn,  353. 
Claflin  V.  Boorum,  335,  336. 
Claflin  V.  Godfrey,  590,  641. 
Claflin  V.  Meyer,  433. 
Claflin  V.  Torlina,  419. 
Clairfield  Lumber  Co.,  In  re,  491. 
Clanton  v.   Scruggs,  95. 
Clapp  V.  Banking  Co.,  491. 
Clara  A.  Mclntyre,  The,  375. 
Clark  V.  Bo  wen,  618. 
Clark  V.  Clark,  117. 
Clarke  v.  Coffin  Co.,  493. 
Clark  V.  Collier,  578. 
Clark  V.  Crosby,  .387. 
Clark  V.  Fisk,  450. 
Clark  V.  Fosdick,  382. 
Clark  V.  Gilbert,  648. 
Clark  V.  Goddard,  190. 
Clark  V.  Great  Northern  R.  Co.,  478. 
Clark  V.  Herring,  136. 
Clark  V.  Insurance  Co.,  267. 
Clark  V.  Jones,  84,  86,  87,  153. 
Clark  T.  Kirkpatrick,  224. 
Clark  V.  Mallory,  491,  505. 
Clark  V.  Marsiglia,  560. 
Clark  V.  Martin,  472. 
Clark  V.  Moore,  568,  609. 
Clark  V.  Needham,  388. 
Clark  V.  Pease,  305. 
Clark  V.  Pendleton,  89,  90,  100. 
Clark  V.  Pinney,  631. 
€lark  v.  Ralls,  283. 


Clark  V.  Russel,  152. 

Clark  V,  Steel  Works,  57L 

Clark  V.  Sylvester,  637. 

Clark  V.  Tate.  212. 

Clark  V.  Terry,  651. 

Clark  v.  Thayer,  297. 

Clark  V.  Turnbull,   300,  301. 

Clark  V.  U.  S.,  179. 

Clark  v.  Van  Court,  208. 

Clark  V.  Weiss,  576. 

Clark  V.   Woodruff,   510. 

Clark's  Case,  613. 

Clark's     Ex'rs  v.  Parish's  Ex'rs,  477. 

Clarke  v.  Brown,  426. 

Clarke  v.  Dickson,  292. 

Clarke  v.  Dutcher,  640. 

Clarke  v.  Foss,  346. 

Clarke  v.  Lumber  Co.,  429. 

Clarke  v.  McAuliffe,  93. 

Clarke  v.  Morey,  183. 

Clarke  v.  Railroad  Co.,  537. 

Clarke  v.  White,  318. 

Clason's  Ex'rs  v.  Bailey,  103,  111. 

Clawson  v.  Doe,  212. 

Clay  V.  Field,  494. 

Clay  V.  Ricketts,  45. 

Clay  v.  Yates,  320,  4l8. 

Clayton  v.  Clark,  162. 

Clayton  v.  Kynaston,  478. 

Clayton's  Case,  551. 

Clearwater  County  State  Bank  v.  Bag- 
ley-Ogema  Telephone  Co.,  336. 

Cleary  v.  Sohier,  595. 

Cleaveland  v.  Richardson,  273. 

Cleaver  v.  Lenhart,  385. 

Clellan  v.  Robe,  529, 

Clem  V.  Railroad  Co.,  28L 

Clement  v.  Brown,  610. 

Clement  v.  Gunhouse,  64. 

Clement's  Appeal,  317. 

Clements  v.  Railroad  Co.,  516,  517. 

Clements  &  Hawkes  Mfg.  Co.  v.  Mes- 
erole,  561. 

Clemmer  v.  Price,  200,  206. 

Clendining  v.  Church,  342,  343. 

Clerihew  v.  Bank,  491. 

Cleveland  Rolling-Mill  Co,  v.  Rhodes, 
514.  571,  582. 

Clews  v.   Jamieson,  345. 

Clifford  V.  Watts,  167. 

Clifton  V.  Jackson  Iron  Co.,  599. 

Clinch  Valley  Coal  &  Iron  Co.  v.  Wil- 
ling, 491. 

Cline   v.    Guthrie,   248. 

Cline  V.  Templeton,  155. 

Clinton   Nat.  Bank  v.  Studemann,  86. 

Clodfelter  v.  Cox,  465. 

Close  V.  Browne,  505. 

Cloud  v.  Greasley,  110. 

Clough  V.  Giles,  529. 

Clough  V.  Railway  Co.,  291.  292,  293. 

Clute  V.  Robison,  403. 

Clutter  V.  Clutter,  307. 

Coad  V.  Rogers,  35. 

Coapstick  v.  Bosworth,  491, 

Coates  V.  Sangston,  492. 

Contes  V.  Wilson,  194. 

Cobb  v.  Billings,  327. 

Cobb  V.  Charter,  635. 


668 


CASES   CITED 
[The  figures  refer  to  pages] 


Cobb  V.  Cowdery,  136,  141,  159,  408. 

Cobb  V.  Duke,  237. 

Cobb  V.  Foree,  31,  42. 

Cobb  V.  Hatfield,  291,  293,  294. 

Cobb  V.  Malone,  615. 

Cobb  V.  Wright,  289. 

Cobban  v.  Ilecklen,  113. 

Cobbey  v.   Buchanan,  197. 

Cobleigh  v.  Pierce,  318. 

Coburn  v.  Goodall,  469. 

Coburn  v.  Webb,  602,  604. 

Cocanougher  v.  Green,  619. 

Cochran  v.  Nebeker,  601. 

Cochran  v.  Railway  Co.,  517. 

Cochran  v.  Stewart,  296. 

Cochran  v.  Ward,  116,  121. 

Cochran  v.   Willis,  252. 

Cochrane  v.  Halsey,  273. 

Cockle  V.  Flack,  338. 

Cocks  V.  Barker,  68. 

Cocks  V.  Simmons,  189. 

Cocks  V.   Varney,  451. 

Coddington  v.  Goddard,  103,  111,  273. 

Coe  V.  Hinkley,  461. 

Coe  V.  Hobby,  492. 

Coe  V.  Tough,   104. 

Cofer  V.   Moore,   144. 

Coffin  V.  Landis,   53S. 

Coffin  V.  Mcintosh,  93. 

Coffin  V.  Talman,  409. 

Cogel  V.  Kniseley,  275,  276. 

Coggs  V.  Bernard,  139. 

Cogley  V.  Cushman,  205,  213. 

Cohen  v.  Envelope  Co.,  397. 

Cohen  v.  Insurance  Co.,  183. 

Coit  V.  Telegraph  Co.,  404. 

Colby  V.  Dearborn,  487. 

Colby  V.  Title  Ins.  &  Trust  Co.,  428. 

Cold  Blast  Transp.  Co.   v.   Bolt  &  Nut 

Co.,  149. 
Colderwood  v.  McCrea,  430. 
Cole  V.    Brown-Hurley    Hardware    Co., 

356,  431. 
Cole  y.  Cassidy,  285. 
Cole  V.  Cole,  108,  224. 
Cole  V.   Edwards,  391. 
Cole  V.   Hughes,  471. 
Cole  V.  Milmine,  346. 
Cole  V.  Pennoyer,  187,  190,  19L 
Cole  V.   Seeley,  187. 
Cole  V.  Singerly,   96. 
Cole  V.  Smith,  282. 
Coleman  v.  Applegarth,  41,  43,  614. 
Coleman   v.   Billings,   373. 
Coleman  v.  Eyre,  123,  146. 
Coleman  v.  Frazer,  224. 
Coleman  v.   Whitney,  448,  449. 
Coleman's  Estate,  In  re,  306. 
Coles  V.  Kennedy,  275. 
Coles  V.  Railroad  Co.,  404. 
Coles  V.  Trecothick,  144. 
Coles  V.  Vanneman,  293. 
Colgate  V.  Pennsylvania  Co.,  499. 
Collamer  v.  Day,  342. 
Collar  V.  Patterson,  21.  646. 
College  Mill  Co.  v.  Fidler,  32,  52. 
Collen  V.  Wright,  270. 
Collier  v.  Coates,  114,  650. 
Collier  v.    White,   554. 


CoUins  V.  Blantern,  72.  306. 

Collins     V.  Collins,  429,  005. 

Collins  V.  Gifford,  220,  221. 

Collins  V.  Lavelle,  505.' 

Collins  V.  Locke,  369,  399,  400. 

Collins  V.   Westbury,  302. 

CoUyer  v.  CoUyer,  51. 

Collyer  v.  Moulton,  525,  530,  560. 

Colton  V.  Gorham,  469. 

Columbian   Bldg.    Ass'n    of    East   Balti- 
more No.  4  V.  Crump,  553. 

Columbus  Const.  Co.  v.  Crane  Co.,  503. 

Colusa  County  v.  Welch,  355. 

Col  well  V.  Lawrence,  517. 

Colyer  v.  Hyden,  66. 

Combination   Steel  &  Iron   Co.   v.   Rail- 
way Co.,  546. 

Combs  V.  Hawes,  213. 

Combs  T.    McQuinn,   374. 

Combs  V.  Scott,  614. 

Comer  v.   Baldwin.   67. 

Comitis  V.  Parkerson,  182. 

Comley  v.  Dazian,  450. 

Commander  v.  Brazil.  222. 

Commercial  Bank  v.  Warren,  605. 

Commerical  Fire  Ins.   Co.  v.  Allen,  553, 
555. 

Commercial  Nat     Bank     y.     Wheelock. 
305. 

Commercial  Nat    Bank   of   Appleton    y. 
Smith,  109. 

Commercial  Tel.   Co.   y.    Smith,    36.   52. 
53. 

Commercial  Union  Assur,   Co.   y.   Hock- 
ing, 369. 

Com.  y.  Dupuy,  372. 
Com.  v.  Eastman,  275. 
Com.  y.  Gillespie.  330. 
Com.  V.  Hunt,  399. 
Com.  T.  Insurance  Co.,  267. 
"Com.  y.  Lane,  433. 
Com.  v.  Matthews.  330. 
Com.  v.  Moltz,  271. 
Com.  y.  Murray.  188. 
Com.  V.  Rees,  329. 
Com.  V.  Richards,  382. 
Com.  V.  White,  330. 
Commonwealth  Title   Ins.   &   Trust   Co. 

v.  Ellis,  510. 
Compton  V.  Rank,  301,  304. 
Compton  V.  Jones,  457. 
Comstock  y.  Adams,  382. 
Comstock  V.  Hier.  632. 
Comstock  V.  Sanger,  585. 
Comstock  y.   Smith,   171. 
Comstock  V.  Ward,  100. 
Conant  y.  Bank,  490. 
Conant  y.   Jackson,  224. 
Conaway  y.  Sweeney,  144. 
Condict  V.  Flower,  604. 
Condon  y.  Kemper,  516,  517. 
Conduitt  y.  Ross,  471. 
Cone  y.  Cross,  21. 

Conflans  Quarry  Co.  y.  Parker,  60S, 
Conger  y.  Railroad  Co.,  614. 
Conlan  y.  Roemer,  293. 
Conley  v.  Nailor.  234,  377. 
Conley  v.  Sims,  326. 
Conn  v.  Coburn,  197,  199. 


CASES    CITED 
[The  figures  refer  to  pages] 


669 


Connecticut  MuL  Life  Ins.  CJo.  v.  Luchs, 

260. 
Connecticut  Mut.  Life  Ins.  Co.  t.  West- 

erboff,  337. 
Connelly  v.  Devoe,  160. 
Conner  v.  Henderson,  295. 
Connolly  v.  Giddings,  99. 
Connor  v.  Black,  430. 
Connor  v.  Renneker,  41. 
Connor  v.  Stanley,  309. 
Conover  t.  Stillwell,  156, 
Conrad  v.  Gibbon,  337. 
Conrad  v.  Lane,  221. 
Conrad  v.   Schwamb,  144, 
Conrad  v.  Trustees  of  Grand  Grove,  555. 
Conroe  v.  Birdsall.  221. 
Conrow  v.  Little,  294. 
Conservative    Realty    Co.    v.    St.    Louis 

Brewing  Ass'n,  504. 
Consolidated    Ry.,    etc.,    Co.    v.    United 

States  Light  &  Heating  Co..  392. 
Constable  v.  Steamship  Co.,  404. 
Constant  v.  University,  152. 
Consumers'  Oil  Co.  v.  Nunnemaker,  389, 

409. 
Converse  v.  Blumrich,  271. 
Conway  v.  Post  Co.,  3lJ2. 
Cooch  V.  Goodman,  03,  72. 
Cook  V.  Bradley,  136,  138. 
Cook  V.  Brown,  65.  67. 
Cook  V.  Ferral's  Adm'rs,  578. 
Cook  V.  Forker,  332. 
Cook  V.  Johnson,  3S9,  39L 
Cook  V.  McCabe,  595. 
Cook  V.  i\Iix,  589. 
Cook  V.  Redman,  101. 
Cook  V.  Shipman,  355. 
Cook  V.  Wright,  154,  155. 
Cooke  V.  Davis,  361. 
Cooke  V.  Millard,  12.=).  127. 
Cooke  V.  Murphy,  160. 
Cooke  V.  Oxley,  40.  43.  44.  137. 
Cookingham  v.   Dusa,   294. 
Cooley  V.   Moss,  138.  563. 
Cooley  V.  Osborne,  372. 
Coolidge  V.  Brigham,  292. 
Coolidge  V.  Ruggles,  455. 
Coombs  V.  Wilkes,  104,  110. 
Coon  V.  Anderson,  477. 
Coon  V.  Spaulding,  512. 
Cooper  V.  Berry,  497. 
Cooper  V.  Bill,  130. 
Cooper  V.  Cooper,  21,  377.  633,  646. 
Cooper  V.  Finke,  488. 
Cooper  V.  Kane,  495. 
Cooper  V.  Lovering,  282. 
Cooper  V.  Phibbs,  252,  256. 
Cooper  V.  Schlesinger,  285. 
Cooper  V.  Wheel  Co.,  149. 
Cope  V.  Rowlands,  321,  322,  323,  326. 
Coplay  Iron  Co.  v.  Pope,  585. 
Coquillard's  Adm'r  v.  Bearss,  355. 
Corbett  v.  Cronkhite,  41. 
Corbett  V.  Norcross,  67. 
Corbett  v.  Spencer,  211. 
Corbin  v.  Laswell,  63. 
Corbitt  V.  Gaslight  Co.,  110. 
Corby  v.  Wcddle,  248 
Corcoran  v.  White,  34. 


Cordes  v.  Miller,  593. 

Cordwert  v.  Hunt,  531. 

Cornell  v.  Green,  553. 

Corn  Exch.  Nat.  Bank  v.  Jansen,  433. 

Corning  v.  Abbott,  323. 

Cornish  v.   Suydam,  527. 

Cornish  v.  West,  521. 

Cornish  Curtis  &  Greene  Co.  T.  Associ- 
ation, 540. 

Cornwell  v.  Megins,  529. 

Cornwells  v.  Krengel,  45. 

Corpe  V.  Overton,  219. 

Corrigan  v.  Pironi,  309. 

Corser  v.  Hale,  35. 

Cort  V.  Lassard,  613. 

Cort  V.  Railway  Co.,  561.  562. 

Cory  V.  Freeholders.  633,  634, 

Cory  V.  Ship  Bldg.  Co..  610, 

Cosand  v.  Bunker,  120. 

Cossitt  V.  Hobbs,  107. 

Costar  V.  Davies,  546.  ^ 

Costello  V.  Cady,  615. 

Coster  V.  Albany,  451. 

Costigan  v.  Lunt,  480. 

Costigan  v.  Railroad  Co.,  471. 

Coston  V.  Morris,  18. 

Cote,  Ex  parte,  34. 

Cote  V.  Murphy,  401. 

Cotheal  v.  Talmage,  517. 

Cothran  v.  Ellis.  342. 

Cothran  v.  Scanlan,  555. 

Cottage  Street  Church  v.  Kendall,  147. 

Gotten  V.  McKenzie,  408. 

Cotton  V.  Graham,  135. 

Cottrell  V.  Southwick,  340, 

Cottrill  V.   Krum,  283. 

Cotzhausen  v.   Simon,  285. 

Couch  V.  Hutchinson,  350. 

Couch  V.  Ingersoll,  566. 

Couch  V.  Meeker,  68. 

Couch  V.  Mills,  478. 

Couder   v.    Hall,   251. 

Coudert  v.  Sayre,  470. 

Coughlin  V.  Knowles,  114. 

Coughlin  V.   Railroad  Co.,  371,  873. 

Coulter  V.  Robertson,  410. 

Counselman  v.  Reichart,  345. 

Countess  of  Dunmore  v.  Alexander,  39. 

County  Board  of  Education  v.  Hensley, 
222. 

CoursoUe  v.  Weyerhauser,  192. 

Courtenay  v.  Fuller,  160. 

Courtney  v.  Blackwell,  310. 

Courtright  v.  Bumes,  375. 

Couturier  v.   Hastie,  87,  252. 

Covel  v.  Turner,  51. 

Coverdale   v.    Eastwood,   271. 

Cowan  V.  Milboum,  418. 

Cowan  V.  Musgrave,  20. 

Cowee  V.   Cornell,   307. 

Cowles  V.  Bacon,  271 

Cowles  V.  Whitman,  012. 

Cowles  Electric  Smelting  &  Aluminum 
Co.  V.  Lowrey,  506,  509. 

Cowley  V.  Northern  Pac.  R.  Co.,  593. 

Cowley  V.  Smyth,  270. 

Cox  V.  Brewing  Co.,  101. 

Cox  V.  Bronkshire,  337. 

Cox  V.  Davis,  486. 


G70 


CASES   CITED 
[Tb«  flgures  refer  to  pages] 


Cox  T.  Highley,  286. 

Coy  V.  Hughes,  350. 

Cos  V,  Long,  581. 

Cox   V.   JMontgomery,   293. 

Cox  V,  Prentice,  640. 

Cox  V.  Smith,  338,  361. 

Cox  Shoe  Co.  v.  Adams.  287, 

Coyle  V.  Camobell,  325. 

Coyne  v.  Avery,  514. 

Coyner  v.  Lynde,  160. 

Cozart  V.  Herndon,  27. 

Cozart  V.  Land  Co.,  120. 

Crabiil  v.  Marsh,  116. 

Crabtree  y.  May,  202. 

Crabtree  v.  Messersmith,  558,  562. 

Crabtree  v.  Opera-House  Co.,  35,  45. 

Craddock  v.  Dwight,  546. 

Craft  V.  Kendrick,  88. 

Craft  V.  McConoughy,  394,  424. 

Crafts  V.  Carr,  193,  197. 

Cragin  v.  Railroad  Co.,  537. 

Craig  V.  Hamilton,  289. 

Craig  V.  Seitz,  174,  175. 

Craig  V.  United  States  Health  &  Acci- 
dent Ins.  Co.,  350. 

Craig  V.  Van  Bebber,  210,  212,  215. 

Craighead  v.  Wells,  214. 

Cram  v.  Hendricks,  335. 

Cramer  v.  Redman,  146. 

Crandall   v.   Payne,  449. 

Crane  v.  C.  Crane  &  Co.,  149. 

Crane  v.  Gough,  90,  114,  461. 

Crane   v.   Powell,   120. 

Crane  v.  Wheeler,  83. 

Crans   v.   Hunter,   155. 

Cranson  v.  Goss,  332. 

Crawford  v.  Bank,  602. 

Crawford  v.  Cato,  302. 

Crawford  v.   Edison,  88. 

Crawford  v.  Heatwole,  517. 

Crawford  v.  King,  87. 

Crawford  v.  Mail  &  Express  Pub.  Co.. 
542. 

Crawford  v.  Millspaugh,  525. 

Crawford  v.  Morz-ell,  407. 

Crawford  v.  Publishing  Co.,  536. 

Crawford  v.  Russell,  381. 

Crawford  v.  Spencer,  344,  422. 

Crawshaw  v.  Roxbury,  49. 

Cray  ton  v.   Clark,  464. 

Cream  City  Glass  Co.  v.  Friedlander, 
493. 

Crears  v.  Hunter,  152. 

Crehore  v.  Crehore,  289. 

Cremer  v.  Higginson,  549. 

Cresinger  v.  Welch's  Lessee,  211. 

Cresswel!  Ranch  &  Cattle  Co.  v.  Martin- 
dale,  571. 

Cribbins  v.  Markwood,  312. 

Cribbs  v.  Sowle,  299. 

Crichfield  v.  Paving  Co.,  424. 

Crigler  v.  Shepler   315. 

Cripps  V.  Reade,  641. 

Crisfield  v.  State,  628. 

Crist  V.  Armour,  563. 

Crisup  V.  Grosslight.   365. 

Critcher  v.  Holloway,  417. 

Critchfield  v.  Paving  Co.,  355,  357. 

Crittenden  t.  Fiske,  30. 


Crocker  v.  Railroad  Co.,  39,  42. 

Crocker  v.  Whitney,  457. 

Crockett  v.  Scribner,  125. 

Crompton  v.  Beedle,   275,  283. 

Crompton  v.  Pratt,  551. 

Cromwell  v.  Grunsden,  63. 

Cromwell  v.  Sac  Co.,  618. 

Cromwell  v.  Tate's  Ei'r,  65. 

Cromwell  v.  Wilkinson,  514. 

Cronin  v.  Watkins,  469. 

Croninger  v.  Crocker,  556. 

Cronk  v.  Trumble,  116. 

Crook  V.   Cowan,   18. 

Crooks  V.  Nippolt,  293. 

Cropp  V.  Hambleton,  555. 

Crosby  v.   Fitch,   537. 

Crosby  v.  Wadsworth,  94. 

Cross  V.  Cheshire,  629. 

Cross  V.  O'Donnell,  127,  129. 

Cross  V.   People,  348. 

Crossley  v.  Maycock,  35,  53. 

Crossley  v.  Moore,  419,  429. 

Crouch  V.  Credit  Foncier,  463. 

Croucher  v.  Oakman,  608. 

Crowder  v.   Keys,  83. 

Crowe  V.  Peters,  224. 

Crowell  V.  Hopkinton,  47. 

Crowell  V,  Hospital,  450. 

Crowell  V,  Jackson,  273. 

Crowfoot  V.  Gurney,  462. 

Crown  Point  Iron  Co.  v.  2Etna  Ins.  Co- 

34. 
Crowther  v.  Farrer,  154. 
Crowther  v.  Rowlandson,  225. 
Croyle  v.  Moses,  275. 
Crum  V,  Sawyer,  140. 
Cuddee  v.  Rutter,  612. 
Culbreath  v.  Culbreath,  63L 
Cullen  V.  Butler,  507. 
Culp  V.  Love,  388. 
Culver  V.  Banning,  137,  147. 
Culver  T.  Bigelow,  337. 
Cumber  v.  Wane,  161. 
Cumberland  Valley  R.  Co.  v.  Baab,  358. 

359. 
Cumming  v.  Hackley,  630. 
Cummings  v,  Arnold,  80,  534. 
Cummings  v.   Gann,  47,  48. 
Cummings  v.   Henry,  234. 
Cummings  v.  Realty  Co.,  38. 
Cummings  v.   Stone  Co.,  397. 
Cundell  v.  Dawson,  323. 
Cundy  v.  Lindsay,  250,  258,  296. 
Cunha  v.  Gallery;  107. 
Cunningham  v.  Bank,  345,  422^  430, 
Cunningham  y.  Cunningham,  379. 
Cunningham  v.  Reardon,  645. 
Cunningham  v.   Williams,  102,   IIL 
Curliffe   v.   Harrison,  556. 
Curran  v.  Galen,  400. 
Currie  v.  Misa,  134. 
Currier  t.  Clark,  379. 
Currier  v.  U.  S.,  351. 
Curry  v.  Curry,  21. 
Curry  v.  Insurance  Co.,  207. 
Curry  v.    Railway   Co.,   521. 
Curson  v.   Monteiro,   71. 
Curtice  Co.  v.   Kent.   204. 
Curtin  v.  Patton,  208. 


CASES    CITED 
[The  flgures  refer  to  pages] 


671 


Curtis  V.  Aspinwall,  318. 
Curtis  V.  Brown,  87. 
Curtis  V.   Krownell,  225. 
Curtis  V.  Clark,  5S8. 
Curtis  V.   Leavitt,  428. 
Curtis  V.   Sage,  99,   100. 
Curtis   V.   ^'an   Bergli,   517. 
Curtiss  V.   Howell,  281,  295. 
Cusack  V.  Robinson,  127. 
Cusliiug  V.  Drew,  51(5. 
Cushing  V.   Wyman,  551. 
Cutler  V.  Dickinson,  70. 
Cutler  V.  Hamlen,  277. 
Cutler  V.  Welsh,  417. 
Cutsinger  v.  Ballard,  117. 
Cutter  V.  Cochrane,  524,  526. 
Cutter  V.  Howe,  499. 
Cutter  V.  Powell,  573,  598,  649. 
Cutting  V.  Railway  Co.,  608,  609. 
Cutts  V.  Guild,  253,  257. 
Cuxon  V.  Chadley,  456,  529. 

D 

Dacosta  v.  Davis,  121. 

Dade  Coal  Co.  v.  Haslett,  184. 

Dady  v.  Condit,  289. 

Dailey  v.  Cain,  97. 

Dailey  v.  Green,  580,  581,  587. 

Dailey  v.  Kinsler,  120. 

Dailey  Co.  v.  Can  Co.,  149. 

Dails  V.  Lloyd,  637. 

Daily   v.   Litchfield,   518. 

Dail^  V.  Minnick,  135,  172. 

Dakin    v.    Pomeroy,   466. 

Dakin  v.  Williams,  566,  578. 

Dale  V.  Kimpton,  463. 

Dale  V.  Kuepp,  331. 

Dale    V.    Robinson,    239. 

Daley  v.  Investment  Co.,  338.  339. 

Dallas  V.   Hollinssworth,  211,   219. 

Dalpay,   In   re,  434. 

Dalton  V.  Thurston,  275. 

Daly   V.  Carthage,   582. 

Daly   V.    Smith,   613. 

Dambmann  v.  Lorentz,  43,  55. 

Dambmann    v.    Schulting,    273. 

Dame  v.  Flint,  433. 

Damon  v.  Osborn,  127. 

Dana  v.  Coombs,  210. 

Dana  v.  Fielder,  496. 

Dana  v.  Hancock,  534. 

Danforth  v.   Freeman,  540. 

Danforth  v.  Railroad  Co.,  611, 

Daniel  v.  Swearengen,  442. 

Daniel  v.  Tarve'r,  589. 

Daniels  v.  Barney,  423. 

Daniels  v.  Meinhard,  461. 

Daniels  v.  Newton,  561. 

Dannat  v.   Fuller,  513. 

Danolds  v.  State,  179. 

Dant    V.    Head,    99. 

Danville  v.  Sutherlin,  336, 

Darby   v.   Krocll,  289. 

Darlington  Iron  Co.  v.  Foote,  31, 

Darlington's  Appeal,  ."JOO. 

nfcrnell  v.  Dolan,  216. 

Darraugh  v.  Blackford,  209. 

Darrow  v.  Produce  Co.,  493. 


Darst   V.   Bates,  87. 

Darst  V.   Brockway,  590. 

Darwin  v.   Rippey,  602. 

Dashaway  Ass'n  v.  Rogers,  633,  634. 

Dashiel  v.  Harshman,   289. 

Dauchey  v.  Drake,  539. 

Dausch  V.  Crane,   298. 

Davenport  v.  Newton,  35. 

Davenport  v.  Ottawa,  347. 

Davenport  v.  Society,  160. 


Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 


dson  V.  Bohlman,  325. 

dson   V.  Burke,  525. 

dson  V.   Carter,  428. 

dson  V.  Cooper,  602,  604. 

dson  V.  Little,  312. 

dson  V.  Nichols,  288. 

dson  V.  Young,  222.  -' 

e  V.  Mining  Co.,  55,  148. 

es  V.  Burns,  353. 

es  V.  Humphreys,  628. 

es  V.  Lowen,  409. 

es  V.  Stowell,  372. 

s  V.  Arledge,  317. 

s  V.   Bauer,  605. 

s  V.  Belford,  480,  521. 

s  V.  Bronson,  414,  434,  435,  560. 

s  V.  Burton,  65. 

s  V.  Caldwell.  195,  198,  199. 

V.  Chase,  373. 
s  V.  Com.,  356. 
s  V.  Davis,  281. 
s  v.  Foreman,  613. 
3  V.  Gallagher,  22. 
3  V.  Gay,  199. 
3  V.  Henry,  601,  602. 
3  V.  Higgins,  486. 
s  V.  Hinman,  383. 
s  V.  Jeffris,  566. 
s  V.   McFarlane,  94. 
s  V.  McVickers,  589. 
Morton,  618. 
Parish,  45. 
Patrick,  86. 
Phillips,  225. 
s  V.  Railroad  Co.,  24,  243,  404, 
s  V.  Robert,  149. 
s  V.  Sanderlin.  481. 
Settle,  375. 
Shafer,  521. 
Shields,  111,  112. 
Sloman,  338. 
Smith,  304.   366. 
Tibbats,  412. 
Van  Buren,  477. 
Webber,  373. 
Wells,  29,  30. 
Williams,  66. 
s  Sewing  Mach.  Co.  v.  Richards,  29. 
s   &   Rankin   Bldg.   &   Mfg.   Co.   v. 
Barber,    521. 
Davis   &    Rankin   Bldg.   &   Mfg.   Co.   v. 

Booth,  521. 
Davison  v.  Von  Lingen,  261,  582. 
Davisson  v.   Ford,  153,   155. 
Dawe  V.  Morris,  280,  281. 
Dawes  v.  Prentice,  507. 
Dawkins  v.  Gill,  364. 
Dawkins  v.  Sappingtnn,  49. 
Dawson  v.  Ewinj;,  555. 


s  v. 

S  V. 
S  V. 
S   V. 


S  V. 
8    V. 

s  y. 

3  V. 
S  V. 
S  V. 
S  V. 
S  V. 
S  V. 
3    V. 


672 


CASES  CITED 
[The  flffurea  refer  to  pages] 


Oawson  t.  Godfrey,  181. 

Dawson  t.  Hall,  67,  68. 

Dawson  v.  Helmes,  211,  215. 

Dawson  v.  Kittle,  498. 

Day    V.    Buggy    Co.,   243. 

Day  V.  Caton,  IS. 

Day   v.   Davis,   72. 

Day  V.  Gardner,   134,  163. 

Day  V.  Griffith,  67. 

Day  V.  Lacasse,   113. 

Day  V.  Leal,  71,  600. 

Day  V.  McAllister,  332. 

Day   V.   McLea,   616. 

Day   V.   Railroad  Co.,   98. 

Dayton  v.   Fargo,  458. 

Dayton  v.  Hooglund,  585,  588. 

Dayton  v.  Moore,  338. 

D.   B.   Steelman,  The,  550. 

Deal  V.  Maxwell,  125. 

Dean  v.  Dicker,  343. 

Dean  v.  Emerson,  388,  409. 

Dean  v.  James,  462. 

Dean  v.  Nelson,  518. 

Dean  v.   Richmond,  237. 

Dean  v.  St.  Paul  &  D.  R.,  46a 

Dearborn  v.  Bowman,  17L 

Dearden  v.  Adams,  219. 

Deason  v.  Boyd,  210. 

De  Baun  v.  Brand,  319. 

De  Camp  v.  Hamma,  248. 

Decell  V.   Lewenthal,   196. 

Decker  v.    Saltsman,   361. 

De  Cremer  v.  Anderson,  29. 

Deering  v.  Chapman,  408. 

Deering  v.  Winchelsea,  628. 

Deering  &  Co.  v.  Cunningham,  856. 

Deford  v.  Dryden,  547. 

De  Forest  v.  Strong,  338. 

De  Graff  v.  Wickham,  517. 

De  Gray  v.  Clubhouse  Co.,  470,  472. 

De  Jarnette  v.  De  Giverille,  183. 

Delamater  v.  Miller,   562. 

Delano  v.  Blake,   206,  211. 

Delano  t.  Montague,  100. 

Delaplane  v.  Crenshaw,  499. 

Delashmutt  v.  Thomas,  55. 

Delavina  v.  Hill,  416. 

Delaware  Trust  Co.  v.  Calm,  576. 

Delier  v.   Society,  343. 

De  Long  v.  Lee,  490. 

Delp  V.  Brewing  Co.,  86. 

Demarest  v.  Willard,  460,  469. 

Demars  v.  Manufacturing  Co.,  154. 

De  Mattos  v.  Gibson,  613. 

De  Mesnil  v.  Dakin,  634. 

Deming,   In    re,    184. 

Deming  t.   Darling,   282. 

Denby  v.  Moore,  635. 

Dendy  v.  Russell,  146. 

Denison  v.  Crawford  Co.,  355. 

Denlar  v.  Hile,  117. 

Dennehy  v.  McNulta,  406. 

Dennett  v.  Dennett,  224,  225,  226. 

Denning  v.  Yount,  437. 

Dennis  v.  Jones,  293. 

Dennis  v.  Maxtield,  611. 

Dennis  v.  Slyfield,  148. 

Dennison  v.  Insurance  Co.,  260. 

Denny  v.  Williams,  121, 


Dent  T.  Bennett,  307,  309. 

Dent  V.  Ferguson,  144. 

Dent  V.  Long,  313. 

Dent  V.  Steamship  Co.,  18. 

Dentler  v.   O'Brien,  202. 

Denton  v.  Great  Northern  R.  Co.,  47. 

Denver  Fire  Ins.  Co.  v.  McClelland,  243. 

Denver  &  N.  O.  Const.  Co.  v.  Stout,  369. 

Denver  &  N.  O.  R.  Co.  v.  Railroad  Co., 

360. 
Depue    V.    Swift    1904    Clothe*    Washer 

Co.,  428. 
Deputy  V.   Stapleford,  305. 
Derby  v.  Johnson,  oGl,  607. 
Derby  v.  Phelps,  100. 
Derby  v.  Thrall,  605. 
Dermott  v.  Jones,  19,  591. 
Derocher  v.  Continental  Milla,  218,  21d. 
Derrett  v.  Bowman,  514. 
Derrick  v.  Monette,  45. 
Derry  v.  Peak,  271. 
Derry  v.  Peek,  286. 
Des  Farges  v.  Pugh,  274. 
Desha  v.  Holland,  497. 
Deshazo  v.   Lewis,  533. 
Deshon  v.  Wood,  90. 
Desilver's  Estate,  In  re,  227. 
Desmarais  v.  Taft,  108. 
Des  Moines  County  v.  Hinkley,  461. 
Des  Moines  Nat.  Bank  v.  Chisholm,  224. 
Desmond-Dunne  Co.  v.  Friedman-Dosch- 

er  Co.,  540. 
De  Sobry  v.  De  Laistre,  376,  435. 
Detroit,  P.  &  N.  R.  Co.  v.  Hartz,  113. 
Detwiler  v.  Bish,  248. 
Devaux  v.  Conolly,  641,  642. 
Devaynes  v.  Noble,  550,  551. 
Devecmon  v.   Shaw,   134,   142. 
Devine  v.   Edwards,  638,  640. 
De  Vita  v.  Loprete,  459. 
Devlin  v.   Brady,  357, 
Devlin  v.  Chamblin,  547. 
Devlin  v.  New  York,  458,  459. 
Devoe  v.  Brandt,  274. 
Dewees  v.  Miller,  342. 
Dewey  v.  Allgire,  225,  229. 
Dewey  v.  School  Dist.,  597. 
De   Witt  V.   Root,  83. 
De  Witt  Wire-Cloth  Co.  v.  Wire-Cloth 

Co.,    395. 
De  Wolf  V.  Chicago,  18. 
Dexter  v.  Blanchard,  82. 
Dexter  v.  Hall,  191,  227. 
Dexter  v.   Norton,   596. 
Dexter  v.  Ohlander,  491,  493. 
Dey  V.  Dox,  565,  566,  567,  578. 
Deyo  V.   Ferris,   95. 
Deyoe  v.  Woodworth,  352. 
Dial  V.  Wood,  188. 
Diamond  Match  Co.  v.  Roeber,  387,  388. 

389,  416.  '     ^ 

Dicken  v.  Johnson,  225. 
Dickerman  v.  Day,  336. 
Dickerson  v.  Colgrove,  271. 
Dickerson  v.  Commissioners,  533. 
Dickinson  v.  Burrcll,  374. 
Dickinson  v.  Calahan's  Adra'rs,  474.    § 
Dickinson  v.  Dodds,  40,  43. 
Dickinson  v.  Gay,  499. 


CASES    CITED 
[Tbe  figures  refer  to  pages] 


673 


Dickinson  v.  Richmond,  331. 
Dickinson  v.  Sheldon,  540. 
Dickson   v.   Kittson,  380. 
Diet'enback  v.   Stark,  579. 
Dietz's  A.'jsignee  v.  Sutcliffe,  647. 
Dill'enderfer  v.   Scott,   135. 
Di  lorio  v.  Di  Brasio,  155. 
Dikes  V.  Miller,  179. 
Dilk  V.  Keighley,  196. 
Dill  V.   White,  o20. 
Dillaby  v.  Wilcox,  85. 
Dillman  v.  Nadlehoffer,  281,  282. 
Dillon  V.  Allen,  321,  327. 
Dillon  V.  Bowies,  197. 
Dillon  V.  Buruham,  221. 
Diman  v.  Railroad  Co.,  258. 
Dimmock  v.  Uallett,  2G0. 
Dingley  v.   Oler,   559. 
Dinsmore  v.  Tidball,  276. 
Directors,  etc.,  of  Ashbury  Railway  Car- 
riage &  Iron  Co.  V.  Riche,  242. 
Dirringer  v.  Moynihan,  88. 
Disbrow  v.  Durand,  21,  646. 
Disbrow's  Estate,  In  re,  306. 
District  of  Columbia  v.  Gallaher,  510. 
District  of  Columbia  v.  Iron  Works,  583. 
Ditchburn  v.  Goldsmith,  342. 
Ditson  V.  Ditson,  9. 
Divan  y.  Loomis,  471. 
Dixon  V.  Bank,  68. 
Dixon  V.  Clarke,  553. 
Dixon  V.  Dunham,  497. 
Dixon   V.   Fletcher,  556. 
Dixon  V.  Merritt,  190. 
Dixon   V.   Olmstead,   635. 
D.  M.  Osborne  &  Co.  v.  Baker,  108. 
Doan  V.  Dow,  151. 
'  Doane  v.  Dunham,  581. 
Doane  v.  Railway  Co.,  358,  362. 
Dob  V.  Halsey,  478. 
Dobbin  v.  Hubbard,  236,  238,  239. 
Dobbins  t.  Cruger,  70. 
Dobson  V.  Collis,  97,  98. 
Dock   V.  Boyd,  85. 
Dr.  Miles  Medical  Co.  t.  John  D.  Park 

&   Sons   Co.,   398. 
Dodge  V.  Emerson,  547. 
Dodge  V.  Favor,  498. 
Dodge   V.   Insurance   Co.,  256,  258. 
Dodge's  Adm'r  v.  Moss,  450. 
Dodson  V.   McAdams,   20. 
Doe  v.   Burnham,  322. 
Doe  d.  Garnons,  40. 
Doe  V.  Roberts,  191. 
Doebler  v.   Waters,   137. 
Doering  v.  Kenamore,  4G6. 
Doherty  v.  Doe,  79,  99. 
Doherty  v.  Hill,  107. 
Dohoney   v.   Dohoney,   332. 
Doles  v.  Hilton,  188. 
Doll  V.  Noble,  542. 
Dollman  v.  King.  505. 
Dolph  V.  Hand,  206,  211. 
Dolph  V.   Machinery  Co.,  396. 
Domenico  v.  Association,  527. 
Dominick  v.  Randolph,  220. 
Donaldson  v.  Farwell,  274,  296. 
Donehoo,  Appeal  of,  235,  335. 
Donellan  v.  Read,  99. 

Clabk  Cont.(3o  Ed.)— 48 


Donelson  v.  Polk,  453,  469. 

Donohue  v.  Donohue,  383. 

Donovan  v.  Daiber,  346. 

Donovan  v.  Richmond,  99. 

Donovan  v.  Standard  Oil  Co.,  495. 

Doolin  V.  Ward,  319. 

Doolittle  V.  Dininny,  79. 

Doon  V.  Ravey,  632. 

Doran  v.  Eaton,  279. 

Doran  v.  McConlogue,  309. 

Doremus  v.  Hennessy,  441. 

Doremus  v.  Lott,   22. 

Doremus  v.  Selden,  482,  628. 

Doringh,   In  re,  461. 

Dorr  V.   Fisher.  58.3. 

Dorr  V.  Munsell,  72. 

Dorr  V.  School  Dist.,  486. 

Dorrill  v.  Eaton,  313. 

Dorris  v.  Sullivan,  95. 

Dorsey  v.  Gassaway,  550. 

Dorsey  v.  Kyle,  183. 

Dorsey  y.  Railroad  Co.,  469,  471. 

Dorsey  v.  Thompson,  183. 

Dorsey  v.  Wolff,  338. 

Dorwin   v.   Smith,   134,  140. 

Duty  v.  Crawford,  555. 

Doty  V.  Martin,  391,  600. 

Doty  V.  Wilson,  172,  173. 

Dougan  v.   Blocher,   118. 

Dougherty  v.  Catlett,  91. 

Dougherty  v.  Chesnutt,  107. 

Dougherty  v.  Seymour,  414. 

Doughten  v.  Association,  294- 

Dou2:hty   v.  Manhattan   Brass  Co.,  110. 

i^oughty  v.  Miller,  73. 

Douglas  V.   West,   66. 

Douglass  V.  Howland,  30. 

Douglass  V.  Matting,  249. 

Douglass  V.  Reynolds,  509. 

Dovale  v.  Ackermann,  155. 

Dow  V.   Bank,  596. 

Dow  V.  Haley,  325. 

Dow  V.   Sanborn,  274. 

Dowagiac  Mfg.  Co.  v.  Schroeder,  285. 

Dowdall  V.   Canndy,  260. 

Dowdy  V.  McLellan,  589. 

Dowling  V.  Lawrence,  277. 

Dowling  v.  McKenney,  119. 

Down  T.  Hailing,  636. 

Downer  v.   Chesebrough,    121. 

Downing  v.  Mt.  Washington  Road  Co., 

242,  243. 
Downing   v.    Stone,    219. 
Downing  v.  Wherrin,  292. 
Dows  v.  Swett,  87. 
Doyle  V.  Church,  303. 
Doyle  V.  Dixon,  96.  97,  98,  141. 
Doyle  V.  Trinity  Church,  646. 
Drake  v.  Seaman,  105,  109. 
Drake  v.  Wells,  94. 
Drake  v.  Whaley.  632. 
Drake  v.  White,  592. 
Drake  v.  Wise,  209. 
Drake's   Appeal,   309. 
Drake's  Lessees  v.  Ramsay,  206. 
l->raper  v.   I'letcher,   461. 
Draper  v.   Hitt,  5.o5. 
Draper  v.   Wood,  601. 
Drayton  v.  Reid,  538. 


674 


CASES   CITED 
[The  figures  refer  to  pages] 


Dreifus  v.  Exposition  Salvage  Co.,  526 

Drennan  v.  Douglas,  370. 

Dresser  v.  Dresser,  97. 

Drew  V.   Goodhue,  539. 

Drew  V.  Nunn,  46. 

Dreyfuss,   Weil  &  Co.  v.  Jones,  376. 

Driver  v.  Broad,  92. 

Drude  v.   Curtis,   214,  215. 

Drum  V.  Drum,  604. 

Drumheller  v.  Surety  Co.,  517. 

Drummond  v.  Crane,  473. 

Drury  v.  Briscoe,  130. 

Drury  v.  Wolfe,  334,  337. 

Drury  v.  Young,  111.  112,  113. 

Dryfus  v.  Burnes,  3.39. 

Du  Bose  V.  Kell,  306. 

Dubose  V.  WLeddun,  199. 

Ducett  V.  Wolf,  113. 

Ducie  V.  Ford,  117. 

Dudley  v.  Briggs,  441. 

Duer  V.   James,  65,  66,  67. 

Duff  V.   Hopkins,   110. 

Duff  V.  Russell,  613. 

Duffy  V.  Shockey,  143. 

Dugan  V.  Gittings,  135,  143. 

Dugan   V.   Thomas,  368. 

Duke  V.  Asbee,  363. 

Duke  V.  Harper,  371.  372,  373. 

Duker  v.   Franz,   005. 

Dull  V.  Mammoth  Min.  Co.,  353. 

Dumont  v.  Heighten,  473. 

Dunbar  v.  Dunbar,  165. 

Dunbar  v.  Railway  Co.,  404. 

Dunbar  v.  Williams.  640. 

Duncan  v.   Baker,   579. 

Duncan  v.  Topham,  32. 

Duncan  v.  Willis,  521. 

Dungan  v.  Insurance  Co.,  554. 

Dunham  v.  Gould,  499. 

Dunham  v.  Griswold,   154,  301, 

Dunham  v.  Pitkin,  06. 

Dunlap  V.  Thorne,  87. 

Dunlop  V.  Higgins,  32,  38,  39. 

Dunmore  v.  Alexander,  42. 

Dunn  V.  Bell,  344. 

Dunn  V.  Houghton,  521. 

Dunn  V.  Moore,  118. 

Dunne  v.  Herrick,  372. 

Dunton  v.  Brown,  186,  190,  206. 

Dunton   v.    Westchester    Fire    Ina.    Co., 

369. 
Duplex    Safety    Boiler    Co.    v.    Garden, 

542. 
Durant  v.  Banta,  3,36. 
Durant  v.  Rhener,  329. 
Durbin  v.  Kuney,   482. 
Durfee  v.  Abbott,  211. 
Durfee  v.  O'Brien.  99. 
Durgin  v.  Dyer,  322. 
Durgin  v.  Express   Co.,  24. 
Durham  v,  Hiatt,  96. 
Durham  v.  Wick,  642. 
Durkee  v.  Railroad  Co.,  255. 
Durkin  v.  Cobleigh,  4'.)2. 
Durment  v.  Tuttle,  589. 
Durnford  v.  Messiter,  440,  627. 
Durnherr  v.  Rau.  449. 
Durr  V.  Chase,  494. 
Duryea  v.  Mayor,  etc.,  508. 


Dusenbury  v.   Hoyt,  174. 

Dusenbury  v.   Speir,  623,  624. 

Dutton  V.  Poole,  444. 

Duval  T.  Neal,  335. 

Duval  V.  Wellman,  381,  428,  635. 

Duvall  V.  Graves,  191. 

Dvvight  V.  Hamilton,  380. 

D wight  V.  Insurance  Co.,  505. 

Dwinel  v.  Howard,  571. 

Dyett  V.  Coal  Co.,  239. 

Dykers  v.  Townsend,  104,  105. 

Dykes  v.  Bottoms,  335. 

Dynan  v.  McCulIoch,  149. 

E 

Eadie  v.  Slimmon,  298,  299,  300. 

Eads  V.  Williams,  ;619. 

Eagan  v.  Scully,  207. 

Eagan  Co.  v.  Johnson,  585. 

Eagle  V.  Smith,  49. 

Eakin  v.  Shultz,  450. 

Eames  v.  Preston,  65. 

Earl  V.  Peck,  140. 

Earle  v.  Angell,  5,  34,  146. 

Earle  v.  Berry,  303. 

Earle  v.  Bickford,  641. 

Earle  v.  Coburn,  646. 

Earle  v.  Oliver,  174. 

Earle  v.  Peale,  197. 

Earle  v.  Reed,  191,  199,  645. 

East  V.  Worthington,  279. 

East  Anglian  Rys.  Co,  v.  Railway  Co., 
242. 

Eastern  Advertising  Co.  v.  McGow,  458. 

Eastern  C.  R.  Co.  v.  Hawkes,  612. 

East  Line  &  R.  R.  R.  Co.  v.  Scott,  97. 

Eastman  v.   Wright,  6,  519. 

Eastman  Land  &  Inv.  Co.  v.  Long- 
Bell  Lumber  Co.,  451. 

Easton  v.  Jones,  56.3. 

East    Tennessee,    V.    &    G.    R.    Co.    v. 
Staub,  97. 

Eastwood  V.  Kenyon,  86,  136,  137. 

Eaton  V.  Eaton,  227,  230. 

Eaton   V.   Hill,   220. 

Eaton  V.  Kegan,  325. 

Eaton  V.  Smith,  504. 

Eatun,   Cole  &  Burnham   Co.  v.  Avery. 
287. 

Eaton's  Adm'r  v.  Perry    234. 

Eau    Claire-St.    Louis    Lumber    Co.    t. 
Banks,  449. 

Eberstein  v.   Willets,  293.  30.5. 

Eblin  V.  Miller's  Ex'rs,  J53,  157. 

Eccleston   v.   Clipsham,  478,  521. 

Echols  V.  Phillips,  65. 

Eckenrode  v.  Chemical  Co.,  558. 

Ecker  v.  McAllister,  153. 

Eckhert  v.  Pickel,  605. 

Eckman  v.  Railroad  Co.,  403. 

Eckstein  v.  Frank,  221. 

Edan  v.  Dudfield,  129. 

Eddy  V.  Capron,  352. 

Eddy  V.   Davis,  567. 

Eddy   V.    Herrin,   301. 

Eddy  V.  Roberts,  138. 
Eddy's  Ex'r  v.  Northiip,  335. 
Edelin  t.  Gough,  108. 


CASES   CITED 
[The  figures  refer  to  pages] 


675 


Edelin  r.   Sanders,  72. 

Edelmuth  v.  McGarren,  414. 

Eden  v.  Chaffee,  85. 

Edgar  v.  Boies,  567. 

Edgar  Lumber  Co.  v.  Cornie  Stave  Co., 

315. 
Edge  V.  Bumford,  467. 
Edgell  V.  McLaughlin,  342. 
Edge    Moore    Bridge    Works   t.    Bristol 

County,  53. 
Edgerly   v.  Hale,  322,  353. 
Edgerly  v.   Shaw,  200. 
Edgerton  v.  Hodge,  130. 
Edgerton  v.  Mathews,  13L 
Edison   v.   Balka,  458. 
Edmond's  Case,  174,  175. 
Edmondstou  v.  Drake,  29. 
Edmunds  v.  Illinois  Cent.  Ry.,  459. 
Edmunds    v.    Transportation    Co.,    250, 

296. 
Edmunds  v.  Wallingford,  630. 
Edmunds  Electric   Const.    Co.   v.   Mari- 

otte,  554. 
Edson  V.  Gates,  463. 
Edson   V.   Hudson,   275. 
Edward  Hines  Lumber  Co.  t.  Anderson, 

84. 
Edwards  v.  Clement,  445. 
Edwards  v.   Davenport,  227. 
Edwards  v.  Estell,  378. 
Edwards  v.  Hoeffinghofif,  431. 
Edwards  v.  Insurance  Soc,  487. 
Edwards  v.  National  Window  Glass  Job- 
bers' Ass'n,  451. 
Edwards   v.   Peterson,   460. 
Edwards  v.  Railroad  Co.,  123,  125. 
Edwards  v.  Randle,  352. 
Edwards   v.    Scott,   463. 
Edwards   Co.   v.   Jennings,   407. 
Egan  V.  Insurance  Co.,  87. 
E.  G.  Dailey  Co.  v.  Can  Co..  149. 
Egerton  v.   Earl   Brownlow,   349. 
Eggleston  v.  Wagner,  34,  45. 
Ehle  V.  Judson,  136. 
Ehle  V.  Purdy,  479,  520. 
E^rmanntraut  v.  Robinson,  104. 
Eichelberger  v.  McCauley,  125. 
Eichelberger  v.  Mills  Land  &  Water  Co., 

280. 
Eichholz  T.  Bannister,  588. 
Eicholz  V.   Bannister,   64L 
Eisel  V.  Hayes,  390. 
Elder  v.  Schumacher,  227. 
Elder  v.  Thompson,  477. 
Elderkin  v.   Fellows,  555. 
Eldred  v.  Malloy,  343. 
Electric  Appliance  Co.  v.  Guaranty  Co., 

448. 
Electric  Lighting  Co.  of  Mobile  v.  Elder, 

542,  543. 
Electrova    Co.    v.    Spring    Garden    Ins. 

Co.,  350,  425. 
Eley  V.  Assurance  Co.,  445. 
Eliason  v.   Henshaw,  34,  37. 
Elizabethtown,    etc.,    R.   Co.   v.   Geoghe- 

gun,   516. 
Elkhart  County  Tx^dge  v.  Crary,  357. 
Elkin  V.  Timlin.  86. 
Ellen  y.  Topp,  5S5. 


Ellenbogen  v.   Griffey,  335. 

Eiler  V.  Lacy,  476. 

EUerman  v.  Stockyards  Co.,  386^ 

Ellicot  V.  Chamberlain,  379. 

Ellicott  V.  Turner,  98,  171. 

Elliott  V.  Bell,  519. 

Elliott  V.  Caldwell,  540. 

Elliutt  V.  Dycke,  486. 

Elliott    V.    Horn,    189. 

Elliott  V.  Sackett,  258. 

Elliott  V.  Swartwout,  303,  639. 

Ellis  V.  Alford,  200,  210. 

Ellis  V.  Andrews,  279. 

Ellis  V.  Bray,  107. 

Ellis  V.  Cary,  22,  650. 

Ellis   V.   Harrison,   451. 

Ellis  V.   Insurance  Co.,   77, 

Ellis  Y.  Mason,  548. 

J-illis  V.  Murray,  84. 

Ellis  V.  Smith,  375. 

Ellis  V,  Thompson,  512. 

Ellison  V.   Water  Co.,   103. 

EUmaker  v.  Ellmakcr,  503. 

Ellsworth  V.  I'ogg,  5'25. 

Elmbank,  The,  461. 

Elmer  v.  Loper,  448. 

Elmore  v.  Kingscote,  132. 

Elmore  v.   Stone,  129. 

EI   I'aso   &  S.   W.  R.  Co.  v.   Eichel  & 

Weikel,   511,   581. 
El  rod  V.  Myers,  196. 
Elsass  V.  Harrington,  275. 
Elser  V.  Gross  Point,  375. 
Eltham  v.  Kingsman,  342. 
EJting  V.  Vanderlyn,  152. 
Elves  V,  Crafts,  300. 
Ely  V.  Hallett,  266. 
Ely  V.   Hartford   Life  Ins.  Co.,  304. 
Emancipation  of  Pochelu,  188. 
Embrey  v.  Jemison,  421,  430. 
Embry     v.     Hargadine-McKittrick     Dry 

Goods  Co.,  502,  504. 
Emerson  v.  C.  Aultman  &  Co.,  108. 
Emerson    v.    Pacific    Coast    &    Norway 

Packing  Co.,  611. 
Emerson  v.  Slater,  86,  134. 
Emerson  t.  Townsend,  343,  417,  422. 
Emerson  &  Co.  v.  iStevens  Grocery  Co., 

53. 
Emery  v.  Boyle,  518. 
Emery  v.  Candle  Co.,  397,  424. 
Emery  v.  Fowler,  507. 
Emery  v.   Kempton,   411. 
Emery  v.  Lawrence,  460. 
Emery  v.  Tichout,  551. 
Emmel  v.  Hayes,  116. 
Emmeluth  v.   Home  Benefit   Ass'n,  480. 
Emmerson  v.  Botkin,  377. 
Emmittsburg  R.  Co.  v.   Donoghue,   155. 

161. 
Emmons  v,  Murray,  209. 
Emmons  v.   Scudder,  635. 
Empire  Rubber  Mfg.  Co.  v.  Morris,  509. 
Empire  Steam  Pump  Co.  v.  Inman,  19. 
Empress   Eng.   Co.,    In   re,   445. 
Enders  v.  Enders,  384. 
Engclhorn    v.   JJeitlinger,   491. 
England   v.  Davidson,   158,  170. 
England  v.  Marsden,  630. 


676 


CASES   CITED 
[The  figures  refer  to  pages] 


Engle  ▼.  Chipman,  351,  352. 
Englebert  v.  Troxell,  187,  197,  215,  216. 
English  V.  Commission  Co.,  580,  585. 
English  T.  New  Orleans  &  N.  E.  R,  Co., 

491. 
English  V.  Smock,  338. 
English's  Ex'r  v.  JNIcNair's  Adm'rs,  507. 
Ennis  v.  Ennis,  90. 
Enos  V.  Sanger,  448,  450. 
Ensign  v.  Park,  150. 
Ensor  v.  Bolgiano,  441. 
Enys  V.  Donnithorne,  480. 
Eppens,  Smith  &  Wiemann  Co.  v.  Little- 

john,  512. 
Epperson  v.  Nugent,  197. 
Equitable  Co.-Op.   Foundry  Co.  v.  Her- 

see,  294. 
Equitable   Endowment  Ass'n  t.   Fisher, 

Equitable  Gaslight  Co.  of  Baltimore 
City  V.  Manufacturing  Co.,  118. 

Erb  V.   Brown,   159. 

Erickson  v.  Fisher,  283. 

Erie  Co.  Sav.  Bank  v.  Colt,  152. 

Ernst  V.  Crosby,  414. 

Erskine   v.   Adeane,   493. 

Erwin  v.  Erwin,  50,  54. 

Esch  V.  White,  88. 

Eskridge  v.  Glover,  39,  41,  43. 

Esmay  v.  Gorton,   35. 

Espalla  V.  Wilson,  120. 

Esposits  V.  Bowden.  595. 

Essig  V.  Turner,  365. 

Estabrook  v.  Swett,  294. 

Esterly  v.  Eppelsheimer,  248. 

Etheredge   v.    Barkley,   25. 

Etheridge  v.  Vernoy,  461. 

Etscheid  v.  Baker,  450. 

Eugster  v.   West,  591. 

Evans,  In  re,  373,  375. 

Evans  v.  Bell,  373. 

Evans  v.  Evans,  383. 

Evars  v.  Gale,   295. 

Eva^s  V.  Hoare,  111. 

Evans  t    Horan,   227. 

Evans  v.  inhabitants  of  Trenton,  353. 

ffivans  V.  Jc<ies,  342. 

{3vans  v.  Kneeland,   270. 

Evans  v.  Manufacturing  Co.,  496. 

Evans  v.  Miller,  647. 

Evans  v.  Railroat!  Co.,  537. 

Evans  v.  Roberts,  94. 

Evansville  &  S.  I.  Traction  Co.  v.  Evans- 
ville  Belt  Ry.  Co.,  ^40. 

F-^veleth  v.  Sawyer,  481. 

Everdell  v.  Hill,  447. 

Everett  v.  Dilley,  54. 

Everhart  v.  Searle,  378. 

Everingham  v.  Meighan,  15?  344,  419, 
430. 

Everitt  t.  Walker,  51. 

Everman  v.   Herndon,    103. 

Everman  v.  Hyman,  49. 

Eversole  v.  Holliday,  352. 

Everson  v.   Carpenter,  208. 

Everson  v.  Granite  Co.,  278. 

Ewell  V.  Daggs,  437. 

Ewing  V.  Burnet,  507. 

Ewing  T.  Wilson,  488. 


Ewins  V.  Gordon,  149. 

Exall  V.  Partridge,  628. 

Excelsior  Needle  Co.  v.  Smith.  505,  608. 

Excelsior    Wrapper    Co.    v.    Messinger, 

149. 
Exchange   Bank   of    St.    Louis   ▼,    Rice. 

445,  446,  448. 
Exchange  Nat.  Bank  v.  Bank,  601. 
Exhaust  Ventilator  Co,  v.  Railroad  Co.. 

542. 
Exley  V.  Berryhill,  340. 
Exposits  V.  Bowden,  595, 
Eyre  v.  Potter,  140. 

F 

Fairbank  Canning  Co.  t.  Metzger,  581. 

Fairbanks  v.  JNIetcalf,  68. 

Fairbanks  v.  Snow,  192,  304,  305. 

Fairchild  v.  Holly,   551. 

Fairchild  v.  Railroad  Co.,  432. 

Fairchild  v.  Rogers,  611. 

Fair  Haven  Marble  &  Marbleized  Slate 

Co.  V.  Owens,  66. 
Fairplay  School  Tp.  v.  O'Neal,  55. 
Faithorne    v.    Blaquire,   2?,~. 
Falconbury  v.   Kendall,    IGG. 
Falkenberg  v.  Allen,  427. 
Fall  V.  Hazelregg,  100. 
Fallowes  v.  Taylor,  72. 
Falls   of  Neuse   Mfg.   Co.  T.   Hendricks, 

108. 
Fanning  v.  Dunham,  338. 
Fanson  v.  Linslev,  634. 
Fant  V.  Miller,  436. 
Farebrother  v.  Simmons,  112. 
Fareira  v.  Gabell,  430. 
Fargo  Gas  &  Coke  Co.  v.  Electric  Co., 

283. 
Farina  v.  Home,  129. 
Faris  v.   King,  422. 
Farley  v.  Cleveland,  85. 
Farley  v.  Parker,  227. 
Farmer  v.  Russell,  425. 
Farmers'  Stock  Breeding  Ass'n  v.  Scott. 

286. 
Farmers'  &  Mechanics'  Bank  v.  Kerche- 

val,  30. 
Farmers'    &    Mechanics'    Nat.    Bank   r. 

Bearing,  340,  341. 
Farnam  v.  Brooks,  224. 
Farnham  v.  Chapman,  87. 
Farnham  v.  Davis,  88. 
Farnham  v.  O'Brien,  136. 
Farnsworth   v.   Telegraph   Co.,   95. 
Farrar  v.  Bessey,  236. 
Farrar  v.   Churchill,   289. 
Farrar  v,  Toliver    524,  526,   527. 
Farrer  v.  Close,  400. 
Farrington  v.  Stucky,  359, 
Farris  v.   Ware,   295. 
Farrow  v.  Wilson,  596. 
Farwell  v.  Becker,  028. 
Farwell  v.  Hanchett,  274. 
Farwell  v.  Lowther,  104. 
Farwell  v.   Mather,  106. 
Farwell  v.  Webster,  332. 
Farwell  Co.  v.   Hilton,  295, 
Fasler  v.  Beard,  516. 


CASES    CITED 
[Tb«  figures  refer  tc  pttges] 


677 


Faulkner  v.  Adams,  67. 

Faulkner  v.  Drug  Co.,   54. 

Faulkner  v.  Hebard,  42. 

Faulkner  v.  Lowe,  (J. 

Faulknor  v.   Swart,  464. 

Fauntleroy  v.  Wilcox,  260. 

Faust  V.  Faust,  451. 

Favor  v.  Phil  brick,  410. 

Fawcett    v.    Freshwater,    157. 

Fawcett  &  Holmes,  In  re,  268. 

Fawkner  v.  Wall-Paper  Co.,  494. 

Fay  T.  Guynon,  456. 

Fay  V.   Smith,  602. 

Fayette  Co.   Sav.   Bank  v.  SteEfes,  249. 

Featherston   v.   Hutchinson,  407. 

Fechheimer  v.  Baum,  274. 

Feeney  v.  Howard,  119. 

Fehlinger  v.   Wood,  81,  85. 

Feiertag  v.  Feiertag,  21. 

Feldman  v.  Beier,  547. 

Feldman  v.   Gamble,  549. 

Feldman  v.  McGuire,  449. 

Feller  v.  Green,  299. 

Fellows  V.  Stevens,  166. 

Felthouse  v.  Bindley,  27,  28. 

Felton  V.  Dickinson,  447. 

Feiton   V.   Gregory,   301. 

Fenner  v.  Mears,   457. 

Fenton  v.   Clark,  648. 

Fenton   v.   White,   199. 

Ferguson,  Appeal  of,  141. 

Ferguson  v.   Bell's   Adm'r,  203,  210. 

Ferguson  v.  Bobo,  222. 

Ferguson  v.  Carrington,  292,  648. 

Ferguson  t.  Coleman    341. 

Ferguson  v.  Crick,  92. 

Ferguson  v.   Davidson,   463. 

Ferguson  v.  Sutphen.  334. 

Ferguson  v.  Teel,  588. 

Ferguson  t.  Wilson,  241. 

Ferguson  v.  Yunt,  427. 

Fergusson  v.  Norman,  327. 

Ferrier  v.  Storer,  31,  39. 

Ferris  v.  Brewing  Co„  387,  448. 

Ferris  v.  Land  Co.,  180. 

Ferst  V.  Bank,  85. 

Ferst  V.  Bank  of  Waycross,  86. 

Fessenden  v.   Mussey,  104. 

Fessenden  v.  Taft,  432. 

Fetrow  v.  Wiseman,  187,  190,  191. 

Fidelity    &    Casualty    Co.   of    N.    Y.    v. 

Grays,  36S. 
Fidelity    &    Casualty    Co.    of   N,    Y.    v. 

Eickhoff,  368. 
Fidelity  &  Deposit  Co.  of  Md.  v.  Butler, 

379. 
Fidelity  Ins.  &  Safe-Deposit  Co.  v.  Ry. 

Co.,  319. 
Field  V.   Cbipley,  354. 
Field  V.  Dale,  171. 
Field  V.  Herrick,  203. 
Field  V.  Holland.  550. 
Field  V.   Leiter,   504,  507. 
Field  V.  Mayor,  460. 
Field  V.  New  York,  460. 
Fifer   v.   Clearfield   &   Cambri*   Coal   & 

Coke  Co.,  250. 
Fightmaster  v.  Levi,  304. 
Fildew  y.   Besley,  591. 


Filipini  v.  Stead,  530. 

Filley  v.  Pope,  482,  580.  582. 

Fillieul  V.   Armstrong,   538. 

Finch  V.   Barclay,  325. 

Finch  y.  Finch,  90. 

Finch  V.   Mansfield,  29. 

Findley's  Ex'rs  v.  Findley,  503. 

Findon  V.  Parker,  371,  372. 

Finegan  v.  Theisen,  309. 

Finger  v.  Hahn,  386. 

Fink  V.  Cox,  135. 

Fink  y.  Smith,  155. 

Finlay  v.  Chirney,  474. 

Finn  v.  U.  S.,  ISO. 

Finney  y.  Apgar,  125. 

Firestone  v.  ^Verner,  275,  276. 

First  Baptist  Church  y.  Insurance  Co., 
77,  97. 

First  Nat.  Bank  v.  Bryan,  303. 

First  Nat.  Bank  v.  Bynum,  464. 

First  Nat.  Bank  v.  Canatsey,  338. 

First  Nat.  Bank  v.  Carriage  Co.,  296. 

First  Nat.  Bank  v.  Carson,  605. 

First  Nat.  Bank  v.   Case,   547. 

First   Nat.    Bank   v.   Chalmers,   86. 

First  Nat.   Bank  v.  Clark,  36,  45. 

First   Nat.  Bank   v.   Dunn,   491. 

First  Nat.  Bank  y.  Gerke,  505. 

First  Nat.  Bank  y.  Hall,  25,  36,  45,  436. 
529 

First  Nat.  Bank  y.  Hamor,  477. 

First  Nat.   Bank  y.   Hart,  47. 

First  Nat.  Bank  v.  Hendrie,  359. 

First  Nat.  Bank  y.  Johns,  249. 

First  Nat.  Bank  v.  Kingsley,  328,  329. 

First   Nat   Bank  y.   North,  493. 

First  Nat.  Bank  v.  Shook,  162. 

First   Nat.   Bank   v.   Spear,   567. 

First  Nat.  Bank  v.  State,  354. 

First  Nat.  Bank  v.  Taliaferro,  499. 

First  Nat.   Bank  y.   Watkins,  28. 

First  Nat   Bank  v.   W^olff.   603. 

First  Nat.  Bank  of  Athens  v.  Buchanan, 
545. 

First  Nat.  Bank  of  Blakely  y.  Dayis, 
545. 

First  Nat.  Bank  of  Fair  Haven  y.  John- 
son, 549. 

First  Nat.  Bank  of  W^ellsburg  v.  Kim- 
berlands,   460. 

First  Universalist  Church  y.  Punga,  147. 

Fish  V.  Chapman,  537. 

Fish  y.  Cleland,  256,  276,  28L 

Fishack  y.  Ball,  501. 

Fishburne  v.  Ferguson's  Heirs,  225,  311. 

Fishel  V.  Bennett,  412,  415. 

Fishel,  Nessler  &  Co.,  In  re,  339. 

Fishell  V.  Gray,  407. 

Fisher  y.  Anderson,  337. 

Fisher  v.    Bartlett,    141. 

Fisher  v.   Bishop,  307,  309. 

Fisher  v.  Bridges,  419. 

Fisher  v.  Hall,  65. 

Fisher  v.   Hildreth,  426. 

Fisher  v.   Hoover,  335. 

Fisher  y.  Hopkins,  477. 

Fisher  y.  Insurance  Co.,  369. 

Fisher  y.   Lighthall.   274. 

Fisher  v.  May's  Heirs,   154. 


678 


CASES  CITfiD 
[The  figures  refer  to  pages] 


Fisher  v.  Mellen,  285. 

Fisher  v.  Mowbray,  190. 

Fisher  v.  Shattuck,  298.  300,  303. 

Fisher  Electric  Co.  v.  Iron  Works,  361. 

Fisheries  Co.   v.   Lennen,  3S6. 

Fitch  V.  Johnson,  469. 

Fitch  V.  Jones,   421, 

Fitch  V.  Snedaker,  49. 

Fitch  V.  Sutton,  165. 

Fitch  V,  Water  Co.,  443. 

Fitts  V.  Hall,  220,  221. 

Fitz  V.  Bynum,  295. 

Fitzgerald  v.  Bank,  503. 

Fitzgerald  v.  Dressier,  87. 

Fitzgerald   v.   Frankel,   524, 

Fitzgerald  v.  Peck,  281. 

Fitzgerald  v.  Reed,  229. 

Fitzhugh  V,   Wilcox,   228. 

Fitzsimmons  v.   Allen,  117. 

Fivey  v.  Pennsylvania  R.  Co.,  246. 

Fjone   V.  Fjone,  300.  311. 

Flach  V.  Gottschalk  Co.,  230. 

Flack  V.  Garland,  615. 

Flagg  V.   Gilpin,  344. 

Flagg  V.  Inhabitants,  330. 

Flagler  v.  Lipman,  87. 

Flanagin  v.   Hambleton,  546. 

Flanders  v.  Fay,  533. 

Flandrow  v.  Hammond,  588. 

Flanigan    v.    Minneapolis,    298,    299. 

Flanlgan  v.  Seelye,  555. 

Flaniken  v.  Neal,  470. 

Flarsheim    v.    Brestrup,    548. 

Fleckenstein  Bros.  Co.  v.   Fleckenstein, 

410.  458. 
Fleetwood  v.   Brown.  251, 
Flegal  V.  Hoover,  524. 
Fleming  v.  Beck.  609. 
Fleming  v.   Gilbert,  532. 
Fleming  v.  Hanley,  293. 
Flenner  v.  Flenner,  90. 
Flersheim  v.   Gary,  407. 
Fletch  V.  Dyche,  516. 
Fletcher  v.  Grover,  482,  628. 
Fletcher  v.   Livingston,  94, 
Fletcher  v.  Peck,  8. 
Flexner  v.  Dickerson.  191. 
Flight  V.  Bolland,  203. 
Flight  V.  Booth.  268, 
Flight  V.  Reed,  175. 
Flinn  v,  I\Iowry,  559. 
Flinn  v.  St.  John,  332, 
Flint  v.  Cadenasso,  448,  450. 
Florida  v.  Morrison,  270. 
Florida,  C.  &  P.  R.  Co,  v.  State,  358. 
Flower  v.  Barnekoff.  93. 
Flower  v.  Sadler,  367. 
Floyd   Acceptances,   179, 
Flynn   v,   Allen,   295. 
Flynn  v.  Columbus  Club,  333. 
Flynn  v,  Dougherty,  125. 
Flynn  v.  Hurlock,  162. 
Foakes  v.  Beer,  161. 
Foard  v.  Grinter's  E^'rs,  152. 
Foard  v.  McComb,  271. 
Foeller  v.   Ileintz,  540,   541. 
Fogg  v.  Portsmouth  Atheneum,  19. 
Foley  V.   Cowgill,  68. 
Foley  V.  Crow,  268,  293,  584. 


Foley  V.  Dwyer,  568, 

Foley  V.  Green,  300. 

Foley  V.  Greene,  366,  428. 

Foley  V.   Mason,  497, 

Foley  V.  Piatt.  353. 

Foley  V.  Storrie,  160. 

Follansbee  v.   Johnson,   450. 

Follett  V.  Buyer,  464, 

Fonda  v.  Burton,  491. 

Fonda  v.  Van  Home,  187,  191. 

Fond   du   Lac  Harrow  Co.   v,   Haskins, 

520. 
Fonseca  v.  Steamship  Co.,  24,  25,  432, 

435. 
Fontaine  v.  Bush,  129. 
Foote  V.  De  Poy,  311,  313. 
Foote  V.  Hambrick,  605. 
Foote  V.  Nickerson,  382,  407, 
Forbes  v.  McDonald,  352, 
Ford   V.    Beach,    505. 
Ford  V.  Cotesworth,  591. 
Ford  V.  Harrington,  428. 
Ford  V.  Hennessy,  309. 
Ford  V,  Mitchell,  547. 
Ford  V.  Oregon  Electric  Ry,  Co.,  359. 
Ford  V.  Phillips,  208. 
Ford  V.  Tiley,  562,  563, 
Ford  V.  Tirrell,  498. 
Fordtran  v.   Stowers,  20, 
Fordyce  v.  Nelson,  461. 
Foreman  v.  Bigelow,  291. 
Forest  Oil  Co.,  Appeal  of,  555. 
Formby  v.  Pryor.  356,  357. 
I'orrester  v.  Flores,  116. 
Forsyth  v.  Ryan,  461. 
Forsyth  Mfg.  Co.  v.  Castlen,  346. 
Forsythe  v.  State,  376. 
Forsythe  v.  Woods,  378. 
Fort  V.  Allen,  91,  92. 
Fortunato  v.  Patten,  465. 
Ft.  Worth  City  Co.  v.  Bridge  Co.,  242. 
Fosdick  V.  Insurance  Co.,  260. 
Fosdick  V.   Van  Arsdale,  367. 
Foshay  v.  Ferguson,  298,  299,  300,  302. 
Foss  V.  Cumniings,  430. 
Foss  V.   Hildreth,  234. 
Foss  V.  Richardson,  590. 
Foster  v,  Bartlett,  634. 
Foster   v.   Burton,   4S2,   628. 
Foster  v.  Dawber,  525, 
Foster   v.   Dupre,  631, 
Foster  v.  Green,  636. 
Foster  v.   Hooper,   477, 
Foster  v.  Ley,  628. 
Foster  v,  Mackinnon,  248,  258. 
Foster  v.  Maginnis,  117, 
Foster  v.  Paine,  529. 
Foster  v.  Peyser,  274. 
Foster  v.  Thurston,  415. 
Foster  v.  Wooten,  331. 
Fountain  v.  Menard,  93. 
Fountaine  v.  Bush,  121,  129. 
Fowke  v.  Bowie,  548. 
Fowkes  V.  Association.  509. 
Fowle  V.  Freeman,  53. 
Fowle  V.  Park,  389,  392. 
Fowler,  Appeal  of,  432. 
Fowler  t.  Brooks,  157. 
Fowler  v.  Callan,  371. 


CASES    CITED 
[The  figures  refer  to  pages] 


679 


Fowler  v.  Fowler,  501. 

Fowler  v.  Insurance  Co.,  267,  344. 

Fowler  v.  McCann,  289. 

Fowler  v.  Trust  Co.,  338. 

Fowler  v.  U.  S.,  179. 

Fowler    v.    Woodward.    258,   50a 

Fox  V.  Association,  3oS. 

Fox  V.  Davis,  882. 

Fox  V.  Kitton,  558. 

Fox   V.   Rogers,   411. 

Fox  V.  Tabel,  250. 

Fox  Solid  Pressed  Steel  Co.  v.  Schoen, 

388. 
Fraley  v.  Bentley,  56. 
Fraley'a  Appeal,  462. 
Frame  v.  August,  85. 
France  v.  Smith,  340. 
Francis  v.  Barry,   107. 
Francisco  v.  Smith,  458. 
Franco-Texan    Land    Co.    v.    Chaptive, 

182. 
Frank  v.  Eltringham,  104. 
Frank's  Appeal,  In  re,  143. 
Franklin  v.  Long,  123,  581. 
Franklin  t.  Matoa  Gold  Min,  Co.,  123, 

130. 
Franklin  v.  Miller,  583. 
Franklin  Bank  v.  Raymond,  639. 
Franklin   Fire  Ins.   Co.  v.   Hamill,  528. 
Franklin  Fire   Ins.  Co.  of  Philadelphia 

V.   Hamill,  532. 
Franklin  Min.  Co.  v.  Harris,  538. 
Frary  v.  Rubber  Co.,  536. 
Frary   v.    Sterling,   100. 
Fraser  v.  Backus,  151. 
Frazer  v.  Andrews,  90. 
Frazer  v.   Gates,  97. 
Frazer  v.  Howe,  106. 
Frazer  v.  Miller,  551. 
Frazier  v.  Massey,  191. 
Frazier  v.   Warfield,  436,  499. 
Frear  v.  Evertson,  456. 
Frear  v.  Hardenbergh,  93. 
Fre?d  v.   Mills,   54. 
Freeman  v.   Boston,   48. 
Freeman  v.  Bridger,  196. 
Freeman  v.  Freeman,  118. 
Freeman  v.  Kieffer,  294. 
Freeman  v.  Roland,  220. 
Freeman  v.  Taylor,  583. 
Freer  v.  Lake,  504. 
Freeth  v.  Burr,  570. 
French  v.    Fidelity  &   Casualty   Co.   of 

New  York,  502. 
French  v.  McAndrew,  190,  218. 
French  v.  Parker,  390,  391. 
French  v.  Pearce,   510. 
French  v.    Shoemaker,   298. 
French  v.  Vlning,  277. 
French's  Heirs  v.  French,  234. 
French  Lumbering  Co.  v.  Theriault,  227. 
Frenzel    v.    Miller,    271. 
Frerking  v.   Thomas,  449. 
Frevall  v.  Fitch,  65. 
Freymsm  v.  Knecht,  581. 
Fri,  The,  435. 
Fridge  v.  State,  554. 
Frieberg  v.  Treitschke,  318. 
Fried   v.   Ins.  Co..   26. 


Friend  v.  Lamb,  292, 

Friend  v.  Miller,  366,  488. 

Friend   Bros.   Clothing   Co.   v.    Hulbert, 

294. 
Friend  &  T.  Lumber  Co.  v.  Miller,  610. 
Frisbee  v.  Hoffnagle,  589. 
Frisby  v.  Ballance,  258. 
Frith  V.  Lawrence,  46. 
Fritzler  v.  Robinson,  251,  252. 
Front  St.  M.  &  O.  R.  Co.  v.  Butler,  567. 
Frost  V.  Belmont,  355. 
Frost  V.  Gage,  318,  424. 
Frost  V.  Johnson,  015. 
Frost  V.  Knight,  558,  559. 
Fruin  v.  Railroad  Co.,  493. 
Fruin   v.   Railway  Co.,"  517. 
Fruitt  V.  Anderson,  227. 
Fry  V.  Patterson,  548. 
Frr  V.  Piatt,  105,  106. 
Fuller  V.  Brown,  596,  64a 
Fuller  V.  Dame,  359. 
Fuller  V.  Duren,  632. 
Fuller  V.  Fuller,  21. 
Fuller  V.  Green,  422,  601,  603. 
Fuller  V.  Kemp,  161,  164,  617. 
Fuller  V.  Roberts,  302. 
Fullerton  v.  Sturges,  604. 
Fullmer  v.  Poust,  568. 
Fulton  V.  Loughlin,  151. 
Fulton  V.  Robinson,  106. 
Funk  V.  Hough,   134,  146. 
Furbish  v.  Goodnow,  86,  88. 
Furenes  v.  Mickleson,  182. 
Furry  v.   O'Connor,   287. 

G 

Gaar,  Scott  &  Co.  v.  Green,  159. 

Gabbey   v.   Forgeus,   298. 

Gabriel    v.    Kildare    Elevator   Co.,    127, 

130. 
Gaffney  v.  Hayden,  204,  219,  651. 
Gage  V.  Ewing,  618. 
Gage  V,  Fisher,  380,  407. 
Gage  V,  Tirrell,  505. 
Gail  V.  Gail,  575,  579. 
Gaines,    Succession  of,   188. 
Gainesville   Nat.    Bank   v,    Bramberger, 

287. 
Gaither  y.  Clarke,  334. 
Galbes  v.   Girard,   ISO. 
Galbreath  v.  Galbreath,  118. 
Gale  V.  Leckie,  317. 
Gale  V.  Kixon,  102. 
Galey   v.    Mellon,    460. 
Gallagher  v.  Gallagher,  116. 
Gallagher  v.  Sharpless,  540. 
Gallalier  v.  Lincoln,  353. 
Galloway  v.  Holmes,  647. 
Gallup  V.  Lichter,  018. 
Galusha  v.  Sherman,  155,  298,  301,  304. 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Short, 

404. 
Galvin  v.  MacKenzie,  128. 
Galway  v.  Shields,  114,  650. 
Gamble    v.    Queens   County   Water   Co., 

336. 
Gambril  v.  Doe,  337. 
Gamba  v.  Sutherland's  Estate,  416. 


680 


CASES  CITED 
[Th«  figures  refer  to  pages] 


Gamewell  Fire  Alarm  Telegraph  Co.  v. 
Crane,   388. 

Gammili  v.  Johnson,  283. 

Oangwere's  P^state,   In  re,  228. 

Gano   ▼.   Aldridge,   507. 

Ganong  &  Chenoweth  v.  Brown,  649. 

Garberino  v.   Roberts,   563. 

Gardels  v.  Kloke,  110. 

Garden  City  v.  Heller,  506. 

Gardiner  v.  Harbeck,  605. 

Ciardiner   v.    Morse,   319. 

Gardner  v.  Caylor,  529. 

Gardner  v.  Lane,  253. 

Gardner  v.  Leek,  550. 

Gardner  v.  Randell,  93. 

Gardner  v.  Smith,  461. 

Gardner  v.  Walsh,  003. 

Garfield  v.  Paris,  127,  128. 

Garland  v.  Harrington,  460. 

Garner  v.   Cook,   202. 

Garnett  v.  Kirkman,  152. 

Garrard  v.  Frankel,  501. 

Garrctson  v.  Vanloon,  512. 

Garrett  v.  SIoss,  319. 

Garrey  v.  Stadler,  185. 

Garrison  v.  Electrical  Works,  289. 

Garrison  v.  U.   S.,  509. 

Garst  V.  Harris,  398,  518. 

Gartner  v.  Hand,  26. 

Garton  Toy  Co.  v.  Buswell  Lumber  & 
Mfg.  Co.,  111. 

Gartrell  v.   Stafford,   111. 

Garvin's  Adm'r  v.  Williams,  309. 

Gasper  v.  Heimnach,  491. 

Gates   V.   Dundon,   302. 

Gates  V.  Nelles,  52. 

Gates  V.  Raymond,  295. 

Gates  V.  Steele,  105. 

Catling  V.  Newell,  295. 

Gatzow  V.  Buening,  400. 

Gauch  V.    Insurance   Co.,   496. 

Gault  V.  Brown,   127. 

Gavagan  v.   Bryant,   249. 

Gavin  v.  Burton,  188,  189. 

Gaw  V.  Bennett,  346. 

Gay  V.  Ballou,  199,  645. 

Gay  V.  Botts,  136. 

Gaylord  v.   Soragen,  415,   416. 

Gazley  v.  Price,  567,  576. 

Geddeg  v.  Pennington,  281. 

Geddes'  Appeal,  279. 

Geelan  v.  Reid,  83. 

Geer  v.  Frank,  373,  407. 

Geer  v.  School  Dist.,  480. 

Geib  V.   Reynolds,   251. 

Geiger  v.   Railroad  Co.,  538. 

Geipel  v.  Smith,  536. 

Gelpcke  v.  Dubuque,  409. 

Gelston  v.    Si^mund,   55. 

Genereux  v.   Sibley,   186,  197,  216. 

Genet  v.  Canal   Co.,  511. 

George  v.   Conhaim.   54. 

George  v.  Johnson,  276. 

Geo.  N.  Fletcher  &  Sons  v.  Alpena  Cir- 
cuit Judge,  336. 

Georgia  Pac.  R.  Co.  v.  Brooks,  293. 

Georgia  R.  &  Banking  Co.  v.  Atlantic 
Postal  Telegraph  Cable  Co.,  361, 

Gerard-Fillio  Co.  v.  SIcNair,  80. 


Gere  v.  Clark,  477. 

Gerhart   v.   Peck,   113. 

Gerlach  v.   Skinner,  407. 

Gerli  v.  Manufacturing  Co.,  571. 

German  American   Ins.   Co.  v.  Comm«it 

cial  Fire  Ins.  Co.,  498. 
German  Fire  Ins.  Co.  v.  Roost,  504. 
German  Sav.  Bank  v.  Roofing  Co.,  29. 
German  State  Bank  v.  Light  Co.,  449. 
Gerrard   v.   Frankel,  278. 
Gerrish  v.  Glines,  601. 
Gerry  v.  Stimson,  70. 
Gerz  v.  Weber,  21. 
Getchell  v.  Maney,  460. 
(Jcttysburg  Nat.  Bank  v.  Chishoira,  601. 
Ghegan  v.  Young,  469. 
Gibbins  v.  Asylum  District,  53. 
Gibbons  v.   Bente,   500. 
Gibbons  v.  Ellis,  490. 
Gibbons  v.   Gouverneur,  343. 
Gibbs  T.  Gas  Co.,  360,  389,  430. 
Gibbs  V.  Linabury,  248. 
Gibbs   V.    Poplar   Bluff   Light    &    Power 

Co.,  193. 
Gibbs  V.  Smith,  319. 
Gibbs   &  Sterrett   Mfg.   Co.   v.    Brucker. 

332. 
Gibney  &  Co.  v.  Arlington  Brewery  Co., 

35. 
Gibson  v.  Carruthers,  458. 
Gibson  v.  Cooke,  460. 
Gibson  v.  Cranage,  541. 
Gibson  v.   Holden,   471. 
Gibson  t.  Holland,  102. 
Gibson  v.  Partee,  08. 
Gibson  v.  Pelkie,  252. 
Gibson  v.  Porter,  471. 
Gibson  t,   Soper,   227.  229,  231,  232. 
Gibson  v.  Stearns,  339. 
Gibson  v.  Trust  Co.,  452. 
Giddings  v.  Iowa  Sav.  Bank,  304. 
Gieske  v.  Anderson,  4.~2. 
Gifford  v.  Corrigan,  60,  448,  450,  451. 
Gifford  V.  Thorn,  144. 
Gilbert  v,  Baxter,  37. 
Gilbert  v.   Holmes,  373. 
Gilbert  v.  McGinnis,  500. 
Gilbert  v.  Plow  Co.,  490. 
Gilbert  v.  Sanderson,  450. 
Gilbert  t.  Sykes,  342. 
Gilchrist  v.  Manning,  294. 
Giles  V.  Edwards,  590,  64L 
Gill  V.  Bicknell,  112. 
Gill  V.  Ferris,  386. 
Gill  V.   Lumber  Co.,  568. 
Gillaspie  v.  Kelly,  605. 
Gilleland  v.  Failing,  372. 
Gillespie,  In  re,  465. 
Gillespie  v.  Edmonston.  43. 
Gillespie  Tool  Co.  v.  Wilson,  540. 
Gillet  V.  Loean,  364. 
Gillett  V.  Bank,  505,  508,  509. 
Gilley  v.  GUley.  64o. 
(iillichan  v.   Boardman,  108. 
Gilliland  v.  Phillips,  437. 
Gillis  V.  Cobe,  541. 
Gillis  V.  Goodwin,  216,  217. 
Gilman  v.  Hall,  648. 
Gilman  v.  Kibler,  27. 


CASES    CITED 
[Th*  figures  refer  to  pages] 


681 


Gilman  v.  Peck,  545. 

Gilman  v.  Rives,  476. 

Gilmore  v.  Bissell,  337. 

Gilmore  v.  Courtney,  577. 

Gilmore  t.  Ferguson,  335. 

Gilmore  v.  Lewis,  3o3. 

Gilmore  v.  Wilbur,  632,  633. 

Gilson  V.  Spear,  220. 

Ginn  v.  Security,  337,  33a 

GlacJus  V.  Black,  539. 

Glaholm  v.  Hays,  262,  582. 

Glascock  V.  Lyons,  631. 

Glasgow  V.  Hobbs,  141. 

Glasgow  Milling  Co.  v.  Burgher,  132. 

Glass  V.  Beach,  136. 

Glass  V.  Hulbert,  116,  118,  119. 

(ilasscock  V.   Glasscock,  65. 

Glasscock  v.  Hazell,  632. 

Glaze  V.  Three  Rivers,  etc.,  Ins.  Co.,  66. 

Glazebrook  v.   Woodrow,  566. 

Gleason  v.   Dyke,  173. 

Gleason  v.  Railroad  Co.,  317,  378. 

Glencoe  Land  &  Gravel  Co.  v.  Commis- 
sion Co.,  442. 

Glenn  v.   Bank,  422. 

Glenn   v.   Canby,  471. 

Glenn  v.  Marbury.  455. 

Glenn  v.  Savage,  646. 

Glenn  v.  Shannon,   637. 

Glidden  v.  Chamberlin,  175. 

Globe  Milling  Co.  v.  Mevator  Co.,  499, 
500. 

Globe  Mnt.  Life  Ins.  Ass'n  v.  Wagner, 
261,  265,  267. 

Gloucester  Isinglass  &  Glue  Co.  v.  Ce- 
ment Co.,  398,  ^87. 

Glover  v.   Ott's  Adm'r,  195,  198. 

Glover  &  Co.  v,  Ott's  Adm'r,  193,  198. 

Glyn  V.  Baker,  636. 

Gcdcharles  v.  Wigeman,  321,  499. 

Goddard  v.  Binney,  125. 

Goddard  v.  Donaha,  116. 

Goddard  v.   O'Brien,  616. 

Godkin  v.  Weber,  129. 

Goebel  v.  Linn,  160. 

Goff  V.  Supreme  Lodge  Royal  Achates, 
377. 

Goldbeck  v.  Bank,  478. 

Goldberg  v.  Lavinski,  101. 

Goldfield  Consol.  Mines  Co.  v.  Goldfield 
Miners'  Union  No.  220,  401.      " 

Golding   V.   Golding,  308. 

Goldman  v.  Oppenheim,  319. 

Goldsborough  v.  Cradle,  47,  463. 

Goldsbrough   v.  Orr,  567. 

Goldsby  v.  Robertson,  171. 

Goldsmith  v.  Guild,  514,  579. 

(ioldstein  v.  White,  579. 

Goltra  V.  Sanasack,  25G. 

Gompertz  v.   Bartlett,  251,  587. 

Gompertz  v.  Denton,  581,  634,  641. 

Gooch  V.  Faucett,  435. 

Gooch   v.   Holmes,   126. 

Good  V.  Cheesman,  165. 

Good  V.  Daland,  398. 

Good  V.  Elliott.  342. 

Good  V.  Herr,  256. 

Goc.dall    V.    Browing   Co.,    416. 

Goodail  V.  Stewart,  294. 


Goodall  V.  Thurman,  276,  376. 
Goode  V.  Harrison.  201. 
Goodlet  V.  Kelly,  66. 
Goodman  v.  Alexander,  196. 
Goodman  v.   Chase,   85. 
Goodman  v.  Eastman,  602. 
Goodman  v.  Henderson,  388. 
Goodnow  V.  Empire  Lumber  Co.,  206. 
Goodrich  v.  Lathrop,  295. 
Goodrich  v.   Reynolds,  338. 
Goodrich  v.  Tenney,  364. 
Good  rum   Tobacco   Co.   v.   Potts-Thomp- 
son Liquor  Co.,  594. 
Goodsell  v.  Myers,  191,  208. 
Goodspeed  v.  Fuller,  488,  642. 
Goodspeed  v.  Plow  Co.,  46. 
Goodwin  v.  Bishop,  339. 
Goodwin  v.   Cunningham,  464, 
Goodwin  v,  FoUett,  161. 
Goodwin  v.  Gilbert,  79. 
Goodwin  v.  Griffis,  647. 
Goodwin  v.  Merrill,  19. 
Goodwin  v.  Screw  Co.,  241. 
Goodwin  v.  Trust  Co.,  285. 
(ioodyear  v.  Adams.  227. 
Gorden  v.  Robertson.  605, 
Gordon  v.  Avery,  106. 
Gordon  v.   Bank,   482. 
Gordon  v.  Butler,  279. 
Gordon  v.  Casey,  363. 
Gordon  v.   George,  469. 
Gordon  v.  Gordon,  160. 
Gordon  v.  Levine,  422. 
Gordon  v.  Parmelee,  279,  280,  282. 
Gore  v.  Gibson,  234,  235. 
Gore  V.  Lewis,  499. 
Gorham  v.  Keyes,  366. 
Gorham's  Adm'r  v.  Meacham'a  Adm'r,  3. 
Gorman  v.   Salisbury,  533. 
Gormely   v.  Association.   281. 
Gormlev,  Appeal  of.  155. 
Gorrell  v.  Water  Supply  Co.,  443,  44a 
Gorringe  v.  Reed,  428. 
Goshen  Nat.  Bank  v.  Bingham,  467. 
Goss  V.  Ellison,  164. 
Goss  V.  Lord  Nugent,  534. 
Goss  V.  Nugent,  533. 
Goss  V.  Whitney,  329. 
Gossard  Co.  v.  Crosby,  613. 
Gotwalt  V.  Neal,  298,  424.  635. 
Goucher  v.  Association,  267. 
Goudy  V.  Gebhart,  73. 
Gould  V.  Banking  Co.,  117. 
Gould  V.  Bourgeois,  588. 
Gould  V.  Gould,  478,  521. 
Gould  V.   Kendall,  361. 
Gould  V.  Mansfield.  91. 
Gould  V.  Murch,  596. 
Gould  V.  Railroad  Co.,  618. 
Gould  V.  Wise,  65. 
Goulding  v.    Davidson,   174. 
Goulding  v.  Hammond,  45. 
Gove  v.  Biddleford,  612. 
Gowan's  Adm'r  v.  Gowan,  426. 
Gower  v.  Capper,  145. 
Gower  v.   Stuart,  85. 
Grabenhorst   v.    Nicodemus,   41. 
Grace  v.  Denison,  107. 
Grace  t.  Hale,  198. 


G82 


CASES    CITED 
[The  figures  refer  to  pages] 


^race  v.  Lynch,  99. 

Gradle  v.  Warner,  104^  131,  554. 

(Jiaeme  v.  Adams,  335. 

Graff  V.  Buchanan,  25. 

Graff  V.  Fitch,  94. 

(Jrafton  v.   Cummings,  104. 

Graham  v.  Burch,  308,  313. 

Graham  v.  Dyster,  036. 

Graham  v.  Johnson,  404. 

Graham  v.  McKeynolds,  372. 

Graham  v.  Marks,  303. 

Graham   v.   Stiles,  277. 

Graham   v.   Tilford,  404. 

Graham  I'aper  Co.  v.  Pembroke,  465. 

Grain  v.  Aldrich,  400. 

Grand  Lodge,  I.  O.  G.  T.,  t.  Farnham, 

148. 
Grand  Tower  &  C.   G.   R.   Co.   v.   Wal- 
ton, 488. 
Grandin  v.  Grandin,  140,  154,  155. 
Grant  v.  Grant,  20,  92,  2.S1. 
Grant  v.  Johnson,  507,  583. 
Grant  v.  Ludlow,  458. 
Grant  v.  Mc<;rath,  332. 
Grant  v,  Mcljachlin.  433. 
Grant  v.  Railway  (o.,  100. 
Grant  v.  State,  347. 
Grant   v.    United    States,   150. 
Grant  v.  Wolf.  84. 

Grape  Creek  Coal  Co.  v.  Spellman,  613. 
Grasselli  v.   Lowilen,   143. 
Grauman,  Marx  &  Cline  Co.  v.  Krienitz, 

222. 
Gravel    Switch,    etc..    Telephone    Co.   v. 

Lebanon,  etc..  Telephone  Co.,  591. 
Graves  v.  The  Calvin   S.   Edwards,  536. 
Graves   v.   Johnson.  414,   415    435. 
Graves  v.  Lepg,  500.  574,  578,  583,  584. 
Graves  v.  Tucker,  08. 
Gray  v.  Bloominuton  &  N.  Ry.,  379. 
(iray  v.  Clark.  504. 
Gray  v.  Hankinson's  Heirs,  589. 
Gray  v.  Herman,  85. 
Gray  v.  Hook,  352. 
Gray  v.  Mathias,  377. 
Gray  v.  McKeynolds,  317. 
Gray  v.  I'earson,  45z. 
Gray  v.  Smith,  578. 
Gray  v.  Toledo,  54. 
Graybill  v.  Br  ugh,  41. 
Great    Britain    Steamboat    Co.,    In    re, 

427. 
Great  Northern  R.  Co.  v.  Swaffield,  028. 
Great  Northern   R.  Co.   v.   Witham,   17, 

43,  149. 
Great  Western  Turnpike  Co.  v.  Shafer, 

97. 
Grebert-Borgnis  v.  Nugent,  609. 
Green   v.  Armstrong,   94. 
<Jreen  v.  Brookins,  123. 
Green  v.  Cole,  53. 
Green  v.  Corrigan,  428. 
Green  v.  Covillaud,  514. 
Green  v.  Creswell,  88. 
Green  v.  Gilbert,  598,  648. 
Green  v.  Green,  207,  215. 
Green  v.  Greenbank,  221. 
Green  v.  Groves,  117. 


Green  v.   Insurance  Co.,  267. 

Green  v.  Langdon,   162. 

Green  v.  I^ewis,  132. 

Green  v.  Merriam,  129. 

Green  v.  Moffett,  499. 

Green  v.   Paul,  527. 

(ireen  v.  Koworth,  306,  308, 

Green  v.   Solomon,  85. 

Green  v.   State,   180. 

Green  v.  Stone,  501. 

Green  v.   Stuart,  587. 

Green  v.  Wells,  533. 

Green  v.  Wilding,  186. 

(ireen  v.  Wilkie,  248. 

Green's  Son  v.  Salas,  182. 

Greenburg  v.   Early,  538. 

Greenby   v.    Wilcocks,   455. 

Greene  v.  Bartholomew.  400. 

Greene  v.  Bateman,   256. 

Greene  v.  Burton,  83. 

Greene  v.   First  Parish  in  Maiden,  170- 

Greene  v.  Greene,  308. 

Greene  v.   Hatch,  404. 

Greene  v.  Latcham,  85,  88. 

Greene  v.  Tyler,  499. 

Greenfield's   Estate,   247,   370. 

Greenlcaf  v.  Allen,  409. 

(ireenough  v.  Eichholtz.  88. 

(ireenstine  v.  Borchard,  500. 

Greenwood  v.  Curtis,  433,  434. 

Greenwood    v.    Law.   120. 

Greenwood   v.   Sheldon,   449. 

Greenwood  v.  Strother,  101. 

Greenwood  v.  Sutcliffe,  555. 

Greer,  Hawes  &  Co.  v.  Severson,  363. 

Gregg  v.  Garrett,   103. 

Gregory  v.  King,   303.* 

Gregory  v.   Lee.  199. 

(Jrt'gory  v.  Littlejohn.  489. 

(Jregory  v.  Logan,  108. 

(Jregory  v.  Pierce,  238. 

Gregory  v.   Thomas,  GOO. 

Gregory  v.  Walker,  60. 

Gregory  v.  Wattowa,  346. 

(Jregory  v.  Wendell,  250,  344,  418,  430. 

Greig  v,   Riordan,   401. 

Greton  v.  Smith,  050. 

CJrey  v.  Cary,  129. 

Grey  v.  Tubbs,  513. 

Greybill  v.  Brugh,  149. 

GribbeB  v.  Maxwell.  230. 

Gridley  v.  Bane,  297. 

Griel  v.  Lomax,  270. 

(Jriel  V.  Solomon,  174. 

Grierson  v.  Mason,  492. 

Grieser  v.  Hall,  339. 

(Jriffin  V.  Colver.  008.  611. 

Griffin  v.   Ogletree,  512. 

Griffin  v.  O'Neil,   277. 

Griffin  v.   Roanoke  Railroad  &   Lumb?r 

Co.,  247. 
Griffith   V.   Burden,  336. 
Griffith  V.  Godey,  311. 
Griffith    V.    Schwenderman,   101. 
Griffith  V.  Tower  Pub.  Co.,  45S. 
Griffith  V.   Wells,  321.  322,  323,  327. 
Griffiths  V.  Owen,  131. 
Grigg  V.   Land  is,  513,  579. 


CASES  CITED 
[The  figures  refer  to  pages] 


683 


(xriggs  T.  Moors,  568. 

Grigsby  v.  Combs,  92. 

Grigsby  v.   Stapleton,  277. 

(irim  V.  Byrd,  279,  289. 

Grim  V.  Byre,  286. 

Grim  v.   Iron  Co.,  447. 

Grime  v.  Borden,  382. 

Grimes  v.  Grimes,  142. 

Grinnell  v.  Telegraph  Co.,  404. 

Grindrod  v.  Wolf,  144. 

Grissell    v.    Robinson,   628. 

Griswold  v.   Butler,   228. 

Griswold  v.  Eastman,  71. 

Griswold    v.    Hazard,    257. 

Griswold  v.  Minneapolis,  St.  P.  &  S.  S. 

M.  Ry.  Co.,  359. 
Griswold  v.  Railroad  Co.,  453. 
Griswold  v.  Waddington,  183. 
Grizewood  v.   Blane,  345. 
Groff  V.  Hansel,  295. 
Grofif  V.  Rohrer,  271. 
Groff  V.  Stitzer,  229. 
Groner  v.  Smith,  64. 
Groomer  v.    McMillan,   130,   131. 
Gross  V.  Cadwell,  51. 
Gross  V.   Criss,  546. 
Groton  t.  Inhabitants  of  Waldoborough, 

351. 
Grove  v.  Rentch,  491. 
Grubbs  v.   Suit,  474. 
Grundies  v.  Kelso,  120. 
Grymes   v.   Sanders,   258,  293. 
Guardian    Fire    &    Life    Assur.    Co.    v. 

Thompson,  270,  276. 
Guckenheimer  v.  Angevine,  295. 
Guerand  v.  Bandelet,  143. 
Guerin  v.  Stacy,  518. 
Guernsey  v.  Cook,  380. 
Guild  V.  Butler,  163,  616. 
Guild  V.  Hull,  224,  225. 
Guilford  School  Tp.  v.  Roberts,  288. 
Guilleaume   v.    Rowe,   298,   300. 
Gould  V.  Mansfield,  91. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Eddins,  403. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Morris,  360. 
Gulf,   C.   &   S.   F.  R.   Co.   V.    Settegast, 

109. 
Gulf,  C.   &  S.   F.  R.   Co.  T.  WUbanks, 

404. 
Gump  V.  Halberstadt,  85. 
Gunby  v.  Ingram,  554. 
Gunby  v.   Sluter,  268. 
Gunning  v.  Royal,  155. 
Gunther  v.  Gunther,  134. 
Gurney  v.  Howe,  546. 
Gurney  v.  Womersley,  587,  641. 
Guthing  V.  Lynn,  54,  55. 
Guthman  v.  Keam,  554. 
Guthrie  t.  Anderson,  110. 
Guthrie  v.  Bashline,  463. 
Guthrie  v.   Morris,  199. 
Guthrie  V.   Murphy,   196. 
Gutta-Percha  &  R.  Mfg.  Co.  v.  Houston, 

624,  626. 
Guyman  v.  Burlingame,  363. 
Gwinn  v.   Simes,   332. 
Gwinn  v.  Whitaker's  Adm'x,  550. 
<i Wynne  v.   Uitchner,  536. 


H 


Haacke  v.  Knights  of  Liberty,  333,  425. 

Haas  V.  Myers,  33. 

Haas  V.  Railroad  Co..  537. 

Haase  v.  Xonnemacher,  580,  585. 

Habricht   v.   Alexander,    183. 

Hackenberry  v.    Shaw,  337. 

Hacker's  Appeal,  64. 

Hackley  v.  Headley,  303. 

Hadcock  v,  Osmer,  286. 

Had  ley  v.  Baxendaie,  609. 

Hadley  v.  Bordo,  547. 

Iladley  v.  Clarke,  593. 

Hadley  v.  Clinton  Imp.  Co.,  275. 

Hadley  v.  Importing  Co.,  273. 

Hadley  v.  Reed,  135. 

Hadlock  v.  Brooks,  374. 

Haebler  v.  Myers,  631. 

Ilaenni  v.  Bleisch,  66,  280. 

Hagadorn  v.   Stronach   Lumber  Co.,  84. 

Hager  v.  Catlin,  351. 

Hagerty   v.   Lee,  471. 

Hagerty  v.  Lock,  219. 

Hagerty  v.  White,  504. 

Haigh  V.  Brooks,  142,  507. 

Haines  v.  Lewis,  356. 

Haines  v.  Tucker,  561. 

Haine's  Adm'r  v.  Tarrant,  197. 

Haldeman  v.  Insurance  Co.,  338. 

Hale  V.  Brown,   224. 

Hale  V.  Cole,  306. 

Hale  V.   Cravener,   150. 

Hale  V.  Gerrish,  208,  209. 

Hale  V.  Hale,  91,  110,  337. 

Hale  V.  Rice,   171. 

Hale  V.  Sheehan,  510. 

Hale  V.  Spaulding,  478. 

Hales  V.  Freeman,  628. 

Hall  V.  Alford,  88. 

Hall  V.  Bank.  503. 

Hall  V.  Bishop,  325. 

Hall  V.  Bryan,  175. 

Hall  V.    Butterfield,    217. 

Hall  V.   Corcoran,   3o2, 

Hall  V.   Crowley,   516. 

ILill  V.  Daggett,  338. 

Hall  V.  Dyson,  318. 

Hall  V.  Gavitt,  351,  419. 

Hall  V.   Haggart,  335. 

Hall  V.  Hall,  06. 

Hall  V.  Hinks,  296. 

Hall  V.  Insurance  Co.,  463,  554. 

Hall  V.  Jones,  218. 

Hall  T.  Leigh,  480,  519. 

Hall  V.  McArthur,  588. 

Hall  V.  Mayor  of  Swansea,  241. 

Hall  V.  Misenheiraer,  106. 

Hall  V.  O'Neil  Turpentine  Co..  350,     ~ 

Hall  V.    Richardson,   548. 

Hall  v.  Shultz,  635. 

PI  all  V.  Solomon,  92,  488. 

Hall  V.  Storrs.  497. 

Hall  v.  Thayer.  521. 

Hall  V.  Wallace.  11.3. 

Hall  V.  Warren,  225.  ' 

Hall  Mfg.  Co.  V.  Supply  Co.,  141. 

Ilnlladay  v.  Hess,  494. 

Hallam  v.  Huffman,  319. 


084 


CASES   CITED 
tTh«  flguras  refer  to  pages] 


Halle  V.  Newbold,  472. 

Hallen  v,  Runder,  93. 

Hallenbeck  v.  Kindred,  470. 

Hallett  V.  Gordon,  479. 

IlalJett  V.  Novian,  322. 

lialley  v.  Troester,  231. 

Hallock  V.  Ins.  Co.,  34,  42. 

Halloran  v.  Whitcomb,  456. 

lialluck  V.  Bush,  G7. 

Halpin  v.  Insurance  Co.,  555. 

rialpin  V.  Stone,  4S8. 

Halsa  V.  Halsa,  109, 

Ham  V.   Smith,  3ti3. 

Hambly  v.  Railroad  Co.,  514. 

Hamer  v.  Sidway,  134.  142. 

Ilamet   v,   Letcher.   250. 

Hamill   v.   Hall,   120. 

Hamilton  v.   Austin,  .331. 

Hamilton  v.   Gray,   373. 

Hamilton  v.  Hamilton,  382. 

Hamilton  v.  Insurance  Co.,  26,  31,   42, 
44,  368. 

Hamilton   v.   McPherson,   609. 

Hamilton  v.  Park  &  McKay  Co.,  252. 

Hamilton  v.  Railroad  Co.,  403. 

Hamilton  v.  Rogers,  459. 

Hamilton  v.    Thrall,    566. 

Hamilton  v.    Watson,    270. 

Hamilton  v.   Wood.  602. 

Hamlin  v.  Abell,  286. 

Hamlin  v.  Drummond,  85. 

Hamlin  v.   Stevenson,  186. 

Hamm  v.  Prudential  Ins.  Co.,  188. 

Hammer  v.   Schoenfelder,  609. 

Hammond  v.  Hopping,  175. 

Hammond  v.  Hussey,  139. 

Hammond   v.  Pennock,  295. 

Hammond  v.  Winchester,  35. 

Hammons  v.  State,  330. 

Hampden  v.  Walsh,  341,  342,  420. 

Hanauer  v.  Doane,  415,  416. 

Hanchett  v.  Ives,  155. 

Hanchett  v.  Jordan,  331. 

Hand  v.  Evans  Marble  Co.,  454. 

Hand  v.  Slaney,  194. 

Handforth  v.  Jackson,   295,  387. 

Handley  v.  Heflin,  482. 

Handrahan  v.  O'Regan,  134. 

Handy  v.  St.  Paul  Globe  Pub.  Co.,  328, 

330.  331.  333,  406,   436. 
Haney  v.  Caldwell,  53S. 
Hankins  v.  Ottinger,  343, 
Hanks  v.  Barron,  160. 
Hanks  v.  Brown,  341. 
Hanks  v.  Naglee,  376. 
Hanna  v.  Wilcox,  310. 
Hannibal   H.  Chandler  &  Co.  v.  Knott. 

527. 
Hannon  v.   Hounihan,  90. 
Hanover  Nat.  Bank  v.  Bank,  430. 
Hanover  Nat.  Bank  v.  Blake,  319. 
Hans   v.    Louisiana,    180. 
Hansard    v.   Robinson,   606. 
Hanscom  v.  Drullard,  283,  286. 
Hansel!  v.  Erickson,  579. 
Hansen  v.  Berthelsen,  310. 
Hansen  v.  Gaar,  Scott  &  Co.,  155. 
Hansen  v.   Meyer,   469. 
Hansen  v.  Rounsuvell,  548. 


Hansen  v.    Steam   Heating  Co.,   571. 

Hanson  v.  Armitage,  129. 

Hanson  v.  Crawley,  605. 

Hanson  v.  Marsh,  106,  123,  132. 

Hanson  v.   Nelson,   85. 

Hanson  &  Parker  v.  Wittenberg,  526. 

Hapgood   V.    Rosenstock,   613. 

Hapgood  V.  Shaw,  576. 

Happy  V.  Mosher,  548. 

Harbart's  Case,  477. 

Harbinger,  The,  497. 

Harbison  v.  Lemon,  2.34. 

Harbord  v.  Cooper,  458. 

Hard  v.   Burton,  529. 

Hard  v.  Seeley,  566. 

Hardeman-King  Lumber  Co.  v.  Hampton 

Bros.,  562. 
Harder  v.  Commissioner.^,  582. 
Hardesty  v.   Graham,  163. 
Harding  v.  Glucose  Co.,  388. 
Harding  v.  Ti£ft,  549. 
Hardman  v.  Booth,  250. 
Hardwick  v.   Insurance  Co.,  77. 
Hardy  v.   Jones,  425. 
Hardy  v.  Waters,  192. 
Hardy    Implement    Co.   v.    South    Bend 

Iron  Works,  45S. 
Hare  v.   Phaup,  357. 
Hargan  v.  Purdy,  326. 
Ilarger  v.  Worrall,  421. 
Hargreaves  v.  Parsons,  83. 
Hargrove  v.   Adcock,   105. 
Hargroves  v.   Cooke,   lUS. 
Harker  v.  Conrad,  549. 
Harkreader  v.  Clayton,  68. 
Harlan  v.  Berry,  4 SO. 
Ilarland   v.   Lilienthal,   325. 
Harley  v.  U.  S.,  19. 
Harlow  v.  Curtis,  35. 
Harlow  v.  Putnam    587. 
Ilarman  v.  Howe,  506. 
Harmon  v.  Bird,  589    ,^90. 
Harmon  v.  Harmon,  228,  298. 
Harmony  v.  Bingham,  302,  59L 
Harms  v.   JlcCormick,   451. 
Harner  v.  Dipple,  190. 
Harner  v.  Killing,  208. 
Harney  v.  Owen,  191. 
riarnor  v.  Groves,  641. 
Harper  v.  Graham,  164. 
Harper  v.  Harper,  97. 
Hari)er  v.  Utsey,  221. 
Harper  v.  Young,  422. 
Harran  v.   Foley,   278. 
Harrell  v.  :\Iiller,  94. 
Harriman,   The,   591. 
Ilarriman  v.  Emerick,  167. 
Harriman  v.  Harriman,  157,  161. 
Harriman    v.    Northern    Securities    Co., 

423. 
Harrington  v.  Dock  Co.,  379. 
Harrington  v.  Harrington,  61. 
Harrington  v.  Higgins,  567. 
Harrington  v.  Iron- Works  Co.,  596,  648. 
Harrington's  Adm'r  v.  Crawford,  353. 
Harris,  Ex  parte,  31. 
Harris'  Case,  26,  31,  .32.  42. 
Harris  v.  Alcock,  274. 
Harris  v.  Carmody,  304. 


CASES  CITED 
[The  figures  refer  to  pages] 


685 


Harria  r.  Carter,  157. 

IIarri8  t.   Cassady,   153,  157. 

Harris  v.   Chamberlain,  352. 

Harris  v.  Frank,  84.    , 

Harris  v.  Harris'  Ex'r,  72. 

Harris  v.   Heackman,   469. 

Harris  y.   Loyd,   G39. 

Harris  v.  Nickerson,   51. 

Harris  v.   Pepperell,   501. 

Harris  v.  Railway  Co.,  24. 

Harris  v.  Regester,  65. 

Harris  v,  Rickett,  487. 

Harris  v.  Roberts,  359. 

Harria  v.   Roof's   Bx'rs,   355. 

Harris  v.  Ross,  202. 

Harris  v.  Runnels,  321. 

Harris  V.  Scott,  35. 

Harris  v.  Sharpies,  539,  540. 

Harris  v.  Smith,  21. 

Harris  v.  Taylor,  236. 

Harris  t.  Tyson,  273. 

Harris  v.  White,  343. 

Harris  v.  Wicks.  338. 

Harris  Co.  v.  Campbell,  461, 

Harrisburg  Bank  v.  Tyler,  446. 

Harrison  v.  Adcock,  211. 

Harrison  v.  Cage,  146. 

Harrison  v.  Close,  161. 

Harrison  v.  Colton,  333. 

Harrison  v.  Fane,  193. 

Harrison  t.  Henderson,  615,  617. 

Harrison  v.  Lodge,  527. 

Harrison  v.   Morrison,   491. 

Harrison  v.   Otley,  230. 

Harrison  v.  Railway  Co.,  591. 

Harrison  v.   Sawtell,  89. 

Harrison  t.  Sugar  Refining  Co.,  386. 

Harrison    Mach.    Works    t.    Coquillard, 

636. 
Harrison  Tp.  v.  Addison,  301. 
Harrow  Spring  Co.  v.  Harrow  Co.,  490- 
Harson  t.  Pike,  47,  4'8. 
Hart  V.  Alexander,  530. 
Hart  V.  Deamer,  228. 
Hart  V.  Mills,  19,  169,  556. 
Hart  V.   Prater,    193. 
Hart  V.   Railroad   Co.,   168. 
Hart  V.  Strong,  161,  303. 
Hartford  Bridge  Co.  v.  Ferry  Co.,  509. 
Hartford  Fire  Ins.  Co.  v.  Chicago,  M.  & 

St.  P.  Ry.  Co.,  349,  350,  437. 
Hartford  Fire  Ins.  Co.  v.  Horr,  368. 
Hartford  Fire  Ins.  Co.  v.  Railroad  Co., 

404. 
Hartford  Fire  Ins.  Co.  t.  Wilcox,  596. 
Hartford  Protection  Ins.  Co.  t.  Harmer, 

261,  266. 
Hartley  t.  Decker,  573. 
Hartley  v.  Rice,  168,  342,  381. 
Hartley  t.  Varner,  83,  84. 
Hartman   t.    Kendall,   211. 
Hartness  v.  Thompson,  202. 
Hartranft  v.  Uhlinger,  334. 
Hartung  v.  Witte,  469,  472. 
Hartupee  v.  Crawford,  569. 
Hartupee  v.  Pittsburgh,  18. 
Hartwell  v.  Hartwell,  352. 
Hartwell  y.  Young.  99,  114.  119. 


Harty   Bros.   &  Harty   Co.   y.  Polakow, 

10. 
Hartzell  y.  Crumb,  493. 
Harvey  v.  Briggs,  203,  215. 
Harvey  y.  Dale,  587. 
Harvey  y.  Doty,  346. 
Harvey  y.  Duffey,  27,  40. 
Harvey  y.  Facey,  52,  54. 
Harvey  y.  Gibbons,  167. 
Harvey  v.  Harris,  253. 
Harvey  y.  Johnston,  18. 
Harvey  v.   ilerrill,   342,   344,   345,   346, 

420,  421,  430. 
Harvey  v.  Mount,  308. 
Ilarwood  v.  Jones,  S6. 
Haseltine  v.  Smith,  374. 
Haskell  v.  Tukesbury,  493. 
Haskell  v.  Wright,  472. 
Haskins  v.  Royster,  441,  442. 
Haskins  v.  Warren,  499. 
Haslack  y.   Mayers,  569. 
Hassie   y.   Congregation,  460. 
Hasted  v.  Dodge,   163. 
Hastelow  y.  Jackson,  426. 
Hastings   v.    Dollarhide,    190,   192,   203, 

204,  218. 
Hastings  v.  Lovejoy,  533. 
Hastings  v.  Vaughn,  64. 
Hatch  V.  Douglass,  344. 
Hatch  V.  Hatch's  Estate,  209. 
Hatch  V.  McBrien,  123. 
Hatch  y.  Mann,  158,  168,  317. 
Hatchett  y.  Baddeley,  238. 
Hathaway  y.  Hagan,  334. 
Hathaway  v.   Moran,  437. 
Hatsall  y.  Griffith,  478. 
Hatton  y.  Cale,  79. 
Hatzfield  v.  Gulden,  356. 
Haubert  v.  Mausshardt,  529. 
Hauk  y.   Brownell,    283. 
Hauser  v.  Harding,  56. 
Haussman  v.  Burnham,  99. 
Havana  Press  Drill  Co.  v.  Ashurst,  161 
Haven  v.  Foster,  257,  640. 
Haven  v.  Neal,  291. 
Haven  v.   Russell,   541. 
Havens  v.  Havens,  22. 
Haviland  v.  Halstead.  383. 
Haviland  v.  Sammis,  91. 
Haviland  v.   Willets,  281. 
Hawes  y    Smith,  134,  503. 
Hawkes  v.  Saunders,  136 
Hawkeye  Ins.  Co.  v.  Brainard,  353. 
Hawkins  v.  Ball's  Adm'r,  597. 
Hawkins  v.  Graham,  541,  542,  543. 
Hawkinson  v.  Harmon,  26. 
Hawks  V.  Weaver,  338. 
Hawley  y.  Beverley,  628. 
Hawley  y,  Bristol,  460. 
Hawley  y.  Keeler,  563. 
Hawley  y   Moody,  114,  651. 
1  la  worth  y.   Montgomery,  325. 
Ha  worth  y   Norris,  489. 
Haws  v.  Tierman,  618. 
Hay  y.  Green,  455. 
Hayden  y.  Souger,  47,  48 
Haydock  v.  Haydock'a  Ex'rs,  310, 
Hayes  y.  Fine,  95. 
Hayes  y.  Gross,  595.  648. 


686 


CASES    CITED 
[The  flgurei  refer  to  pages] 


Hayes  y.  Insurance  Co.,  161. 

Hayes  v.  Jackson,  H)1,  109. 

Hayes  v.  O'Brien,  41. 

Haynes  v.  Baptist  Church,  595. 

Haynes  v.  Bennett,  211. 

Haynes  v.  Dorman,  409. 

Haynes  v.  Mason,  OS. 

Haynes   v.   Nice.   549. 

Haynes  v.  Rudd,  407,  424,  635. 

Hayney  v.  Coyne,  373. 

Hays  V.   McClurg,  548. 

Hayvvard  v.  Andrews,  457. 

Hayward   v.    Barker,   175,  236. 

Hay  ward  v.  Leonard,  540,  648. 

Hayward  v.  Mfg.  Co.,  355. 

Hazard   v.   Day,   329. 

Hazard  v.  Insurance  Co.,  253,  637. 

Hazard  v.  Irwin,  73. 

Hazard  v.  Loring,  554. 

Hazelrigg   v.    Donaldson,    302. 

Hazlett  V.   Sinclair,  471. 

Head  v.  Diggon,  40. 

Head  v.  Insurance  Co.,  242. 

Head  v,  Tattersall,  535. 

Headley  v.   Shaw,  567. 

Heady   t.    Boden,   174. 

Healy  v.  Protection  MuL  Fire  Ina.  Co., 

553. 
Heany  v.  Schwartz,  621. 
Heaps  V.  Dunham,  300. 
Heard  v.  Pulaski,  549,  552. 
Hearn,   In   re,    188. 
Hearn  v.  CuUin,  440,  627. 
Heart  v.   East  Tennessee  Brewing  Co., 

594. 
Heath   v.   Blake,  604. 
Heath  v.  Hall,  401. 
Heath   v.   Heath.  97. 
Heath   v.   Stevens,   217. 
Heath  v.  West,  213.  ^ 

Heaton   v.   Angier,   529. 
Heaton  v.  Dennis,  370.  375. 
Heaton  v.  Eldridge.  121. 
Heaton  v.  Norton  Co.  State  Bank,  302, 

304. 
Heaver  v.  Lanahan,  560. 
Hebb's  Case,   27. 
Hecht  V.  Acme  Coal  Co.,  594. 
Hecht  V.   Batcheller,  253,  254. 
Hecht  V.  Caughron,  448. 
Heckman  v.  Swartz,  634. 
Hedden  v.  Roberts,  499. 
Hedges  v.  Wallace,  416. 
Hedin  v.  Institute,  283. 
Heermans  v.  Ellsworth,  463. 
Heffelfinger  v.   Hummel,  154^ 
Heffington  v.  Jackson,  195. 
Heffron  v.  Armsby,  112. 
Hefter  v.  Cahn,  318. 
Hegler  v.  Faulkner,  207. 
Heilbutt  V.  Hickson,  581. 
Heintz  v.  Burkhard,  125. 
Heirn  v.  Carron,  616. 
Heirs  v.  Ormsby.  203. 
Heist  V.  Blaisdell,  337. 
Helfenstein's  Etetate,  In  re,  46. 
Hellams  v.  Abercrombie,  329. 
Helland  v,  Colton  State  Bank,  217. 
Helms  V.  Crane,  157. 


Helms  V.  Franciscus,  382. 
Helt  V.   Smith,  87. 
Hemingway  v.  Stansell,  615. 
Hemmenway  v.  Stone,  481,  520. 
Hemmer  v.   Cooper,   282. 
Hendee  v.  Pinkerton,  64. 
Henderson  v.  Cass  County,  555. 
Henderson  v.   Coke   Co.,  33. 
Henderson  v.   Fox,   199. 
Henderson   v.   Gibbs,   296. 
Henderson  v.  Hammond,  476. 
Henderson   v.  Henrie,  117.   319. 
Henderson  v.  Henshall,  473. 
Henderson  v.  McGregor,  224,  225. 
Henderson  v.  Palmer,  366. 
Henderson  v.  Perkins,  107. 
Henderson  v.  Railway  Co.,  461. 
Henderson  v.  Stevenson,  24. 
Henderson   Bridge  Co.   v.   McGrath,  50,. 

55. 
Hendrick  v.  Lindsay,  448. 
Hendricks  v.   Goodrjch,  631. 
Hendricks  v.  Rasson,  66. 
Hendy  v.  Kier,  137. 
Henkel  v.  Pape,  255. 
Henley  v.   Weiss,   228. 
Hennequin  v.  Naylor,  274. 
Hennersdorf  v.    State,   331. 
Hennessey  v.  Wooiworth,  614. 
Hennessy  v.  Bacon,  154. 
Heunessy  v.  Metzger,  517. 
Henninger  v.   Ileald,   295. 
Hennington  v.   State,  328. 
Hearikson  v.  Henrikson,  118,  119. 
Henry  v.  Bishop,  486. 
Henry  v.  Coats,   603. 
Henry  v,  Dussell,  134. 
Henry  v.  Flagg,  338. 
Henry  v.  Henry,  90. 
Henry  v.  Root,  187,  190,  209. 
Henry  v.  Sansom,  339. 
Henry  v.  Wells,  115. 
Henry  Bill  Pub.  Co.  v.  Utley,  549. 
Heusel  v.  Association,  3.34. 
Henthorn    v.    Eraser.    32,   42,    43. 
Hentz  v.  Jewell,  346.  ^ 

Hentz  v.  Miller,  250. 
Henzler's  Estate  v.   Bossard,  22. 
Herbert  v.  Turball,  186. 
Herbstreit  v.   Beckwith,  461. 
Herendeen  Mfg.  Co.  v.  Moore,  84. 
Herman    v.    Jenchner,   427. 
Herman  v.  Schlesinger,  162. 
Hermann  y.  Charlesworth,  381,  643. 
Hernandez  y.  Insurance  Co.,  510. 
Herreshofif  v.  Boutineau,  386,  387,  388.. 

389. 
Herreshoff  v.  Misch,  533. 
Herrick  v.  Newell,  119. 
Herriman   v.    Menzies,   399. 
Herring  v.  Cumberland  Lumber  Co.,  430. 
Herring  v.  Dorell,  153. 
Hersey  y.   Bennett,  551. 
Hershey  v.  Luce,  510. 
Hertzler  y.  Geigley,  425.  431. 
Hertzog  v.  Hertzog,  10,  20,  623. 
Herzog  v.  Heyman,  587. 
Herzog  v.  Sawyer,  533. 
Hess  V.  Griggs,  486. 


CASES    CITED 
[Tbe  figures  refer  to  pages] 


687 


Hess'  Estate,  In  re,  65    133 

Hessick  v.  Hessick,  309. 

Hewes  v.  Bayley,  478. 

Ilewett  V.  Currier,  155. 

Hewitt  V.  Anderson,  50. 

Hewitt  V.  Dement,  338. 

Hewitt  V.  Jones,  248. 

Hewitt  V.  Lumber  Co.,  495. 

Heyman  v.  Dooley,  138. 

Heyn  v.  New  York  Life  Ins.  Co.,  510. 

Ileysham  v.  Dettre,  93. 

Heyward  v.  Lomax,  550. 

Heywood   v.    Perrin,   504. 

Heywood  v.  Tillson,  442. 

Hey  worth  v.  Knight,  53. 

Hibbard   v.   McKindley,   505. 

Hibbard  v.  Peek,  497. 

Hibbert  v.  Aylott's  Heirs,  118. 

Hibbette  v.  Baines,  384, 

Hickey  v.  O'Brien,  56,   149. 

Hickey  v.  Stewart,  619. 

Hickman  v.  Hall's  Adm'rs,  197. 

Hickman  v.  Haynes,  528,  534, 

Hickman  v.  Shimp,  535. 

Hicks  V.  Aylsworth,  579. 

Hicks  V.  Burhans,  171. 

Hicks  V.  Cram,  477. 

Hicks  V.  Stevens,  283,  289,  488. 

Hieronymus  v.   Association,  436. 

Higert  v.  Asbury  University,  147. 

Higgen's  Case,  599. 

H  logins.  In  re,  188. 

Higgins  V.  Dale,  174. 

Higgins  V.  Ilallock,  83. 

Higgins  V.  Hill,  145. 

Higgins  V.  Lessig,  50. 

Higgins  V.   Murray,  125. 

Higgins  V.  Pitt,  318. 

Higgins  V.  Railroad  Co.,  571. 

Higgins  V.  Senior,  105,  113,  493. 

Highberger  v.   StifQer,  307. 

Highstone  v.  Burdette,  491. 

High  Wheel  Auto  Parts  Co.  v.  Journal 

Co,  of  Troy,  17. 
Hilborn  t.  Bucknam,  301. 
Hilderbrand  v.  American  Fine  Arts  Co., 

579 
Hill  V.  Anderson,   219. 
Hill  V.  Baker,  182. 
Hill  V.  Blake.  79,  534. 
Hill  V.  Buckley,  255. 
Hill  V.   Duluth,   510. 
Hill  V.  Dunham,  332. 
Hill  V.  Evans,  496. 
Hill  V.  Freeman,  424. 
Hill  V.  Hill,  22. 
Hill  V.  Hooper,  98. 
Hill  V.  Jamieson.  98. 
Hill  V.  Kidd.  342. 
Hill  V.  McNichol,  66. 
Hill  V.   McPherson,   463. 
Hill  V.  Manufacturing  Co.,  508. 
Hill  V.  Miller,  308. 
Hill  V.  Morse,  61. 
Hill  V.  Nelms,  21L 
Hill  V.   Robbins,  551. 
Hill  V.  Spear,  416. 
Hill  V.  Whidden,  489. 
Hill  Co.  T.  Gray  &  Worcester,  398. 


Hill-Dodge  Banking  Co.  v.  Loomis,  224. 

Hills  V.  Ludwig,  92. 

Hills  V.  Street,  635. 

Hills  V.  Sughrue,  252. 

Hillyard  v.  Hewitt,  490. 

Hilton   v.   Burley,   550. 

Hilton  V.   Eckersley,   401. 

Hilton  V.   Houghton,   332. 

Hilton  V.  Shepherd,  210. 

Hilton  V.   W^oods,  375. 

llimrod   Furnace    Co.    v.    Railroad   Co., 

104. 
Hinchman  v.  Lincoln,  126,  128. 
H  inch  man  v.  Weeks,  287,  294. 
Hinckley  v.  Steel  Co.,  563,  586. 
Hind   V.   Holdship,   141. 
Hindmarch  v.  Hofifman,  634,  636. 
Hindrey  v.   Williams,  595'. 
Ilines  V.  Board,  298. 
Hines  v.  Union  Sav.  Bank  &  Trust  Co., 

417. 
Hingston  v.  L.  P.  &  J.  A.  Smith,  284. 
Hinkley   v.    Fowler,   451. 
H  in  ton  v.   Locke,  496. 
Hirth  V.  Graham,  94. 
Hiss  Co.  V.  Pitcairn,  540. 
Hissong  V.   Railroad   Co.,   403. 
Hitchcock  V.   Coker,   390. 
Hittson  V.  Brown,  325. 
Hoadley  y.  McLaine,  132,  169. 
Hoagland  v.  State,  180. 
Hoare   v.   Rennie,   570,   571. 
Hobbs  V.  Boatright,  428. 
Hobbs  V.  Brick  Co.,  524. 
Hobbs  V.  McLean,  508. 
Hobbs  V.   Whip  Co.,   19. 
Hobough  V.  Murphy,  174,  175. 
Hochmark  v.    Richler,   337. 
Hochster  v.  De  la  Tour,  558,  559. 
Hodge  V.   Sloan,  387,  472. 
Hodges  V.  Kowing,  111. 
Hodges   V,   Nalty,   148,   331. 
Hodges  V.  Sublett    25,  53. 
Hodgson  V.  Temple,  415. 
Hodson  V.  Terrill,  426. 
Hoe  V.   Sanborn,  277,  580. 
Ilofflin  V.  Moss,  378. 
Hoffman   v.   Coombs,  157. 
Hoffman   v.    Eastern    Wisconsin    Ry.    & 

Light  Co.,  504,  506. 
Hoffman  v.   Insurance  Co.,  505,  509. 
Hoffman  v.  Noble,  296. 
Hoffman  v.  Vallejo,  370. 
Hogan  V.  Curtin,  381. 
Hogan  V,  Kyle,  619. 
Hogan  V.  Moore,  305. 
Hogan  V.  Stophlet,  157. 
Hogencamp  v.   Ackerman,   531, 
Hogg  V.   Laster,   22. 
Hogg  V.  McGuffin,  612. 
Hoglund  V.  Sortedahl,  540. 
Holbrook  v.  Burt,  463,  464. 
Holbrook  v.  Connor,  282. 
Holcomb  V,  Weaver,  378. 
H olden  v.  Cosgrove,  419. 
Holden  v.  Curry,  191. 
Holden  v.  Hardy,  320. 
Holden   v.  O'Brien,  329. 
Holden  v.  Pike,  217. 


688 


CASES    CITED 
[Th*  figures  refer  to  pages] 


HoUaday   t.   Patterson,  3.'>9. 

Holland  v.  Sheehan    316,  ouo. 

HoUenberg  Music  Co.  v.  Berry,  416. 

Holler  V.  Richards,  103. 

Holley  V.  Aiiness,  612. 

HoUiday   v.   Poole,    161. 

Hollins  V.  Fowler,  250. 

Hollis  V.  Burgess.  102,  107.  109. 

Hollis  V.  Edwards,  100. 

HoUia  V.  Francois,  236,  23S. 

Hollis  V.  Pond,  65. 

Hollister  v.   Abbott.  61. 

Hollister  v.   Stewart,  618. 

Holloway  v.  Jacoby,  585. 

HoUoway  v.  Lowe,  373. 

Hnlloway  v.  McNear,   500. 

Holloway's  Assignee  v.  Rudy.  175. 

Hoiman  v.  Johnson,  424,  435.  436,  642. 

Holmden   v.  Janes,  117. 

Holmes  v.  Bank,  335. 

Holmes  v.  Bell,  600. 

Holmes  v.  Blogg.  217. 

Holmes  v.  Boyd,  157. 

Holmes  v.  Gregg,  556. 

Holmes  v.  Halde,  325. 

Holmes  v.  Hall,  503. 

Holmes  v.  Hill,  300. 

Holmes  v.  Insurance  Co.,  507. 

Holmes  v.  McDonald,  06. 

Holmes  v.  Rice,  187.  202. 

Holmes  v.  Richet,  369. 

Holmes  v.  State  Bank  of  Duluth,  336. 

Holmes  v.  Trumper,  601,   602. 

Holmes  v.  Williamson,  628. 

Holmes  &  Griggs  Mfg.  Co.  v.  Metal  Co., 

243 
Hoist  V.  Stewart,  281,  284. 
Holston  Salt  &  Plaster  Co.  7.  Campbell, 

510. 
Holt  V.  Ely,  634. 
Holt  V.  Kirby.  339. 
Holt  V.  O'Brien.  408. 
Holt  V.  Pie,  492. 
Holt    V.    Ward    Clarencieux,    146,    147. 

191,  202,  203. 
Holton  V.  Noble,  279. 
Holtz  V.  Schmidt,  637. 
Home  Ins.  Co.  v.  Morse.  369. 
Homer  v.  Perkins,   279. 
Homer  v.  Shaw,  o79. 
Homer  v.  Thwing,  22L 
Homer  v.  Wallis,  603. 
Honck  V.  MuUer,  570. 
Honeyman  v.  Jarvis,  154. 
Honeyman  v.   Marryatt,  35. 
Hood  V.  EJxploration  Co.,  586. 
H:ood  V.  Hartshorn,  369. 
Hood  V.  Todd,  254. 
Hooker  v.  Knab.  430. 
Hooper  v.  Brundage,  464. 
Hooper  v.  Edwards,  330. 
Hooper  v.  Hooper,  86.  509. 
Hooper  t.  Payne.  202. 
Hooper's  Case,  600. 
Hoover  v.  Sidener,  581. 
HopeweU  V.  McGrew,  509. 
Hopkins  v.   Stefan,   333. 
Hopkins  v.  United  States,  39S. 
Hopper  v.  Ludlum,  185. 


Hopson  V.  Boyd.  228. 

Horn  V.  Bank,  Gul. 

Horn  V.  Luddington,  116. 

Horn  T.  Miller,  470. 

Hornby  v.  Close,  400. 

Home  T.  Niver,  38. 

Home  V.  Railway.  610. 

Horner  v.  Frazier.  92.  99. 

Horner  v.  Graves.  386. 

Horner  v.  Horner,  492. 

Horsfall  v.  Thomas   289. 

Horst  V.   Wagner,  604. 

Horton  v.   Bauer,   608. 

Horton  v.  Bloedorn,  298. 

Horton  v.  Lee,  2S3. 

Horton  v.  McCarty,  112. 

Horton  v.   Riely,  629. 

Horton  v.  Rohlff.  508. 

Hosford  V.   Kanouse,  447. 

Hoshor  V.  Kautz,  142. 

Hoskinson  v.  P^liott,  477. 

Hosier  v.  Hursh,  615. 

Hosmer  v.  McDonald.  510. 

Hosmer  v.   Wilson.   558,  561. 

Hostetter  v.  Hollinser.  447. 

Hostetter  v.   Park,   498. 

Hotchkin  v.  Bank,  274. 

Hough  V.  Brown,  35. 

Hough  V.   Kugler,  518. 

Hough  V.  Rawson,  576. 

Hough's  Adm'rs  v.  Hunt,  313. 

Houghtaling  v.   Ball.   121,  132. 

Houghteling  v.  Lumber  Co..  336. 

Houghton  V.  Francis.  603. 

Houghton  V.  Houghton.  307. 

Houghwout  V.  Boisaubin,  18,  39,  43. 

Houldsworth  v.  City  of  Glasgow  Bank„ 

292. 
Houlton  T.  Dunn,  355. 
Houlton  v.   ManteufFel.  218. 
Houlton  V.  Nichol,  356. 
Housding  v.  Solomon,  541. 
House  V.  Alexander,  195.  196,  210. 
House  V.   McKenney.  420. 
House  V.  Waterworks  Co.,  443. 
Household  Ins.  Co.  v.  Grant,  32,  33. 
Housekeeper  Pub.  Co.  v.  Swift,  527. 
Houser   v.    Lamont,    120. 
Houser  v.  McGinnas.  628. 
Houston  V.  Sledge,  534. 
Houston  Ice  &  Brewing  Co.  v.  Keenan.. 

594. 
Houston  &  T.  C.    R.   Co.   v.   McCarty, 

254. 
Hovey  V.  Chase,  225. 
Hovey  v.   Hobson.  225,  227,   228.   229, 

231,  232,  233. 
Hovey  v.  Page,  474. 
Hovey  v.  Storer,  356. 
How  v.  Kemball,  109. 
Howard  v.  Daly,  32,  38,  558,  607. 
Howard   v.  Gould,   275. 
Howard  v.  Independent  Church,  362. 
Howard  v.  Industrial  School,  51. 
Howard  v.  McCall,  549. 
Howard  v.  Manufacturing  Co.,  61L 
Howard  v.  Murphy,  378. 
Howard  v.  Railroad  Co.,  527. 
Howard  v.  Simpkins,  195. 


CASES    CITED 
[Th«  figures  refer  to  pages] 


G6» 


Howard   v.    Walker,   498. 

Howard  v.  Whitt,  79. 

Howard   Ins.  Co.   v.  Owen's  Adm'r,  77. 

Howarth   v.   Warmser,   473. 

Howe  V.  Batchelder,  94. 

Howe  V.  Hayward,  130. 

Howe  V.  Litchfield,  419. 

Howe  V.  North,  20. 

Howe  V.  O'Mally,  146. 

Howe  V.  Smith,  130. 

Howe  V.  Taggart,  152. 

Howe  V.  Wildes,  236. 

Howe  Mach.  Co.  v.  Bryson,  611. 

Howe  Sewing  Mach.  Co.  v.  Rosensteel, 

597. 
Howell  V.  Coupland,  596. 
Howell  V,  Harvey,  86. 
Howell  V.  Kelly,  93. 
Howell  V.  Stewart,  415,  416,  417. 
Howes  V.  Barker,  599. 
Howes  V.  Scott,  440. 
Howes  V.  Smith,  134. 
Howland  v.  Coffin,  470. 
Howland  v.  Lounds,  49. 
Howley  v.  Whipple,  255. 
Howson  V.   Hancock,  425. 
Hoxsie  V.  Lumber  Co.,  615. 
Hoyle,  In  re,  103. 
Hoyt  V.  Byrnes,  555. 
Hoyt  V.  Casey,  193,  196. 
Hoyt  V.  Wilkinson,  205,  218. 
Hoyt  Mfg.  Co.  V.  Turner,  294, 
Hubbard   v.  Bank,   554. 
Hubbard   v.    Belden,   596,   648. 
Hubbard  v.   Coolidge,   140. 
Hubbard  v.  Cummings,  210,  212. 
Hubbard  v.  Freiburger,  341. 
Hubbard  v.  Greeley,  68. 
Hubbard  v.  Martin,  256,  640. 
Hubbard  v.  Miller,  143,  387,  409. 
Hubbard  v.  Moore,  415. 
Hubbard  v.  Rowell,  611. 
Hubbard  v.  Weare,  287,  289. 
Hubbell  V.  Flint,  414. 
Hubbell  V.   Palmer,  35. 
Huber  V.  Guggenheim,  280. 
Huber  v.  Johnson,  373,  374. 
Huck  V.   Flentye,  18. 
Huckestein  v.  Kelly,  527. 
Huckins  v.  Hunt,  317,  318. 
Hudelson  v.  State,  347. 
Hudgins  v.    State,   102. 
Hudson  V,  Hudson,  20. 
Hudson  V.  McCartney,  309. 
Hudson  V.  Revett,  68,  69. 
Hudson  V.  Weir,  126. 
HufE  V.  Logan,  164. 
Huff  V.  Watkins.  442. 
Huffman  v.  Hughlett,  633. 
Huffman  v.  Wyrick,  22. 
Huggins    V.    People,    303. 
Hughes  V.  Boone,  437. 
Hughes  V.  Fisher,  85. 
Hu:;hes  v.  Griswold.  338. 
Hughes  V.  Gross,  596. 
Husrbes  v.   Manufacturing  Co.,  282. 
Hughes  V.  Nolte.  610. 
Hughes  V.  Wanisutta  Mills,  594. 
Hughes  V.  Watson,  212. 

Claek  Cont.(3d  Ed.) 


Hugo,   The,   403. 

Huguennin  v.  Baseley,  309. 

Hull  V.  Johnson,  617. 

Hull  V.  Louth,  232,  233. 

Hull  V.  Pitrat,  613. 

Hull  Coal  &  Coke  Co.  v.  Coke  Co.,  506, 

514,  572. 
Hull's  Assignees  v.  Connolly,  196. 
Hulme  V.  Tenant,  238. 
Hulse  V.  Machine  Co.,  393. 
Humbert  v.  Brisbane,  107,  116. 
Humble  v.  Hunter,  249,  453. 
Humble  v.  Mitchell,  125. 
Hume  V.  United   States,  278. 
Humphrey  v.  Merriam,  285,  286,  289. 
Humphreys  v.  Railroad  Co.,  490. 
Hunkins   v.   Hunkins,  117. 
Hunt  V.  Bate,  170. 
Hunt  V.   Brown,  614. 
Hunt  V.  Grav,  604.  605. 
Hunt  V.  Hecht,  129. 
Hunt  T.  Higman.   31. 
Hunt  V.   Hunt,  90,  382. 
Hunt  V.  Jones,  121. 
Hunt  V.  Knickerbacker,  322. 
Hunt  V.  Lipp,  116. 
Hunt  V.  Livermore,  504. 
Hunt  V.  Mann,  455. 
Hunt  V.  Peake,  187,  191,  203. 
Hunt  V.  Rabitoay,  231. 
Hunt  V.  Rhodes,  256. 
Hunt  V.  Shackleford,  464. 
Hunt  V.  Silk,  641. 
Hunter  v.  Anthony.  507. 
Hunter  v.  Mills,  117. 
Hunter  v.  Nolf.  352. 
Hunter  v.  Tolbard,  234. 
Plunter  v.  Walters,  246. 
Hunter  v.   Warner,  555. 
Hunter  v.  Wenatchee  Ijand  Co.,  563. 
Hunter  v.  Wetsell,  130.   131. 
Hunter's  Adm'rs  v.  Miller's  Ex'rs,  505. 
Hunting  v.  Downer,  587. 
Hunting  v.   Emmart,  461. 
Huntington  v.  Knox,  250. 
Hurd   V.   Bovee,   494. 
Hurd  V.  Dunsmore,  609. 
Hurd  V.   Hall,  587. 
Hurley  v.   Scbring,  533. 
Hurlock  V.  Smith,  526. 
Hurst  V.  Litchfield,  368. 
Hurt  V.  Ford,  89,  121. 
lluscombe  v.   Standing,  303. 
Hussey  v.  Horne-Payne,  36. 
Hussey  v.  Jewett,  203. 
Husscv  V.  Kirkman.  621. 
Husteil  V.  Craig,  582. 
Hustis  V.  Pickards,  326. 
Hutchen  v.  Gibson,  356. 
Ilutcbins  V.   Hebbard,  71. 
Hutchinson  v.  Heyworth,  462. 
Hutchinson  v.   Hutchinson,  97. 
Hutley  V.  Hutley,  304,  371,  372,  375. 
Hutton  V.  Warren,  495. 
Hutton  Bros.  v.  Gordon,  88. 
Hutzler  v.  Lord.  628. 
Huvett  Mfg.  Co.  V.  Chicago  Edison  Co., 

648. 


690 


CASES    CITED 
[The  figures  refer  to  pages] 


Huyett  &    Smith    Mfg.   Co.   v.    Chicago 

Edison  Co.,  595. 
H.  W.  Gossard  Co.  v.  Crosby,  613. 
Hyde  v.   Wrench,  35,   37,  45. 
HydeviUe   Co.   v.    Slate   Co.,  533. 
Hyer  v.   Hyatt,  199. 
Hyer  v.  Traction  Co.,  362. 
Hvnds  V.  Hays,  406. 
Hypes  V.  Griffin,  105. 
Hysell  v.  Manufacturing  Co.,  595. 


Ide  V.  Leiser,  39,  40. 

Ida  V.   Stanton,  106. 

Ihley    V.    Padgett,   206. 

Ilderton  v.  Ilderton,  433._ 

Illinois  V.  Railroad  Co.,  553. 

Illinois    Cent.    R.    Co.    v.    Cabinet    Co., 

517. 
Illinois  Cent.  R.  Co.  v.  Cobb,  609. 
Illinois  Land  &  Loan  Co.  v.  Bonner,  187, 

203. 
Illinois  Land  &  Loan  Co.  v.  Speyer,  374. 
Illinois  Masons'  Benevolent  Soc.  v.  Bald- 
win, 497. 
Ilsley  V.  Jewett,  175. 
Imperial  Land  Co.  of  Marseilles,  In  re, 

3L 
Imperial   Tx>an  Co.  v.   Stone,   46,  230, 
Indiana  Mfg.  Co.  v.  Hayes,  19. 
Indianapolis    Cabinet    Co.    v.    Hermann, 

56. 
Indianapolis,   D.  &   S.  R.  Co.  v.   Ervin, 

300. 
Indianapolis,   D.   &    W.   R.   Co.  v.   For- 

sythe,  403. 
Indianapolis,   P.   &  C.   R.   Co.   v.   Tyng, 

285. 
Indianapolis  Water  Co.  v..  Nulte,  471. 
IngersoU  v.  Martin,  162,  614. 
Inglebright  v.  Hammond,  499. 
Ingraham  v.  Baldwin,  227,  230. 
Ingram  v.  Ingram,  448. 
Inhabitants  of  Bernards  Tp.  v.  Stebbins, 

64. 
Inhabitants  of  Bordentown  Tp.  v.  Wal- 
lace, 303. 
Inhabitants   of  Industry   v.    Inhabitants 

of   Starks,   372. 
Inhabitants    of    Middlefield    v.    Knitting 

Co.,  470. 
Inhabitants    of    Town    of    Montville    t. 

Haughton,  64. 
Inhabitants   of  West   Cambridge   y.    In- 
habitants of  Lexington,  433. 
Inhabitants  of  Whitefield  v.  Longfellow, 

299. 
International  Building  &  Loan  Ass'n  t. 

Abbott,  334. 
International    Contracting    Co.    v.    Mc- 

Nichol,  609. 
International  Harvester  Co.  v.   Voboril, 

299,  304. 
International  Harvester  Co.  of  America 

V.  McAdam,  432,  435. 
International  Hotel  Co.  v.  Flynn,  521. 
International  Land  Co.  v.  Marshall,  222. 


luternational    Text-Book   Co.    t.   Doran, 

194,  216,  222. 
International  Text-Book  Co.  v.  McKone, 

199. 
International  &  G.  N.  Ry.  Co.  v.  Daw- 
son, 359. 
Inter-Ocean     Pub.     Co.     v.     Associated 

Press,  397. 
lonides  v.  Pacific  Ins.  Co.,  253. 
Ion  ides  v.  Pender,  266. 
Iowa    Savings   &   Loan   Ass'n   v.    Heidt, 

334    3^8 
Ipock  v."" Atlantic  &  N.  C.  R.  Co.,  223, 

230. 
Iredell  T.  Barbee,  505. 
Ireland  v.  Geraghty,  66. 
Iron   City  Tool-Works  v.   Long,   628. 
Iron   Works  v.  Douglas,  45. 
Irvine  v.  Irvine,  190,  204,  211. 
Irvine  v.  McKeon,  70. 
Irvine's  Heirs  v.  Crockett,  202. 
Irwin  v.  Lombard  University,  147,  148. 
Irwin   V.    Williar,    342,    344,    346,   431, 

498. 
Irwin  V.  Wilson,  253,  254. 
Irwin's  Estate,  In  re,  352. 
Isaacs  V.  Wanamaker,  581.   • 
I  sham  V.  Post,  139. 
Isherwood  v.   Whitmore,  556. 
Isom  v.  Johns,  631. 
Iverson  v.  Cirkel,  121. 
Ives  V.  Atlantic  &  N.  C.  R.  Co.,  94. 
Ives   V.   Bosley,   157. 
Ives  v.   Carter,   282. 
Ives  V.  Hazard,  111. 
Ives  V.  «ones,  320.  412. 
Ives  V.  Tregent,  26. 
Ivory  V.  Michael,  602. 


Jack  ▼.  Davis,  464. 

Jackson  v.  Bank,  417. 

Jackson  v.  Burke,  549. 

Jackson  v.  Cassidy,  334. 

Jackson  v.  Collins^  282,  283. 

Jackson  v.  Duchaire,  317. 

Jackson  v.  Gager,  486. 

Jackson  v.  Gardner.  508. 

Jackson  v.  Hodges,  292. 

.lackson  V.  Hough,  631. 

Jackson   v.   Insurance   Co.,  683. 

Jackson  v.- Jackson,  433. 

.Tackson  v.  Johnson,   605. 

Jackson  v.  McLean,   424. 

Jackson  v.  May,  338. 

Jackson  v.  Murray,  628. 

Jackson  v.  Myers,  119. 

Jackson  v.  Parkhurst.  70. 

Jackson  v.  Security  Mut.  Life  Ins.  Co. 

64. 
Jackson  v.   Sheldon,  486. 
Jackson  v.  Stackhouse.  504,  614. 
Jackson  v.   Travis,  3.35. 
Jackson   v.   Tupper,   130. 
Jackson  v.  Vanderheyden,  236. 
Jackson  Iron  Co.  v.  Concentrating  Co., 

100. 
Jackson's,  Adm'r  v.  Jackson,  21. 


CASES    CITED 
[The  figures  refer  to  pages] 


691 


Jackson  Steel  Nail  Co.  v.  Marks,  347. 
Jacksonville,  M.  P.  Ry.  &  iSav.  Co.  t. 

Hooper,  t>4,  591. 
Jacobs,  In  re,  320. 
Jacobs  V.   Cohen,  401. 
Jacobs  V.   Moseley,  D-. 
Jacobs  V.  Railroad  Co.,  117. 
Jacobs  V.  Tobiasun,  3(J2. 
Jacquinet  v.  Boutron,  5U2. 
Jaeger's  Sanitary  Woolen  Supply  Co.  v. 

Walker,  458. 
Jaffray  v.  Davis,  161    163,  164. 
Jaffrey  v.  Brown,  275. 
Jahn  V.  Champagne  Lumber  Co.,  372. 
James,  In  re,  137. 
James  v.  Adams,  558,  561. 
James  v.  Darby,  35. 
James  v.  Hodsden,  289. 
James  v.  Jellison,  381,  407. 
James  v.  Manning,  79. 
James  v.  iMayrant,  239. 
James  v.  Morey,  79. 
James  v.  Morgan,  167. 
James  v.  Newton,  461. 
James  v.  Patten,  112. 
James  v.  Roberts,  299. 
James  v.  Steere,  269. 
James  Quirk  Milling  Co.  v.  Minneapolia 

&  St.  L.  R.  Co.,  349,  402,  403. 
Jameson  v.  Carpenter,  424. 
Jamieson  v.  Wallace,  345,  430. 
Jamison  v.  Culligan,  230. 
Jamison  v.  Dimock,  117. 
Jangraw  v.  Perkins,  .381. 
Janin  v.  Browne,  597. 
Janis  V.  Roentgen,  366. 
Januey  v.  Boyd,  498. 
Jansen  v.  Kuenzie,  109. 
Janvrin   v.   I'^xeter,  47. 
Jaqua  v.   Headington    517. 
Jaques  v.  Methodist  Church,  238. 
Jaquith  v.   Hudson,  516,  517. 
Jarv'is  v.  Peck,  392. 
Jeane  v.  Grand   Lodge,  369. 
Jefferson  v.  Asch,  449. 
Jefferson  v.  Church  of  St.  Matthew,  549. 
Jefferson  County  Building  Ass'n  v.  Hell, 

66. 
Jeffery  v.  Underwood,  63. 
Jeffery  v.  Walker,  119. 
Jefferys  v.  Gurr,  241. 
Jefford's  Adm'r  v.  Ringgold,  203. 
Jeffrey   v.    Bigelow,   277. 
Jeffries  v.  Ferguson,  482. 
Jell  T.  Douglas,  479. 
Jellett  v.  Rhode,  101. 
Jenkins  v.  Bradford,  373. 
Jenkins  v.  Frink,  319. 
Jenkins  v.  Hall,  382. 
Jenkins  v.   Long,   538. 
Jenkins  v.  Pye,  308.  312,  813. 
Jenkins  v.  Trager.  92. 
Jenks  V.  Fritz,  258. 
Jenners  v.  Howard,  22.5. 
Jenness  v.  Iron  Co.,  45.  > 

Jenness  v.  Lane,  157,  163. 
Jenness  v.  Parker,  589. 
Jennings  v.  Chase,  156. 
Jennings  t.  Lj^ons,  596,  648. 


Jennings  v.  McConnel.  307,  309. 
Jennings  v.  Rundall,  219,  221. 
Jennings  v.  Shertz,  131. 
Jerome  v.  Bigelow,  317. 
Jervis  v.  Berridge,  492. 
Jessel  V.  Insurance  Co.,  457. 
Jewett  V.  Black,  513. 
Jewett  V.   Smith,  473. 
Jewett  Pub.  Co.  v.  Butler,  320; 

J.  G.  Wagner  Co.  v.  Cawker,  516. 
J.  G.  Williams  &  Bro.  v.  Branning  Mfg. 
Co.,  369. 

J.   H.  Silkman  Lumber  Co.  v.  Ilunholz, 
129. 

J.    I.    Case   Threshing    Machine    Co.    v. 
Mattingly,  247. 

J.  I.  Case  Threshing  Mach.  Co.  v.  Mey- 
ers, 234. 

J.     I.    Case    Threshing     Mach.    Co.    v. 
Smith,  IIL 

Jilson  V.  Gilbert,  96. 

J.  K.  Armsby  Co.  v.  Grays  Harbor  Com- 
mercial Co.,  524. 

Joannin  v.  Ogilvie,  635. 

Joest  V.  Williams,  235. 

.Tohn  V.  John,  142. 

John    PritzlafE    Hardware   Co.   v.    Berg- 
hoefer,  577. 

John  Solcv  &  Sons  v.  Jones,  591. 

John  V.  Farwell  Co.  v.  Hilton,  295. 

Johns  V.  Fritchey,  234. 

Johns  V.  Wilson,  447. 

Johnson  v.  Bank,  84. 

Johnson  v.  Berry,  323,  425. 

Johnson  v.   Chadwell,   224. 

Johnson  v.  Cummins,  239. 

Johnson  v.  Dodge,  93. 

Johnson  t.  Dodgson,  103. 

Johnson  v.   Fall,   342. 

Johnson  v.  Farley,  65. 

Johnson  v,  Gallagher,  239. 

Johnson  v.  Harmon,  234. 

Johnson  v.  Harvey,  628. 

Johnson  v.  Heagan,  601. 

Johnson  v.   Hubbell,  271. 

Johnson  v.  Hulings,  326. 

Johnson  v.  Insurance  Co.,  214,  217. 

Johnson  v.  Jacobs,  27. 

Johnson  v.   Lines,  193,  195,   198,  199. 

Johnson  v.   McLane^  293. 

Johnson  v.  Moore,  601. 

Johnson  v.  Packet  Co.,  627,  628. 

Johnson  v.  People,  330. 

Johnson  v.  Phifer,  234.^ 

Johnson  v.  Pie,  222. 

Johnson  v.  Railroad  Co.,  24. 

Johnson  v.  Railway  Co.,  403. 

Johnson   v.   Ronald,  107. 

Johnson  v.  Seymour.  279,  290. 

Johnson  v.  Smock,  555. 

Johnson  v.  Stoddard,  497. 

Johnson  v.  Storie,  207. 

Johnson  v.  Tabor,  131. 

Johnson  v.  Travis,  610. 

Johnson  v.  Vickers,  450. 

Johnson   v.   Wallower,  277. 

Johnson  v.  Weed,  547. 

Johnson  v.  Wilkinson,  95. 

Johnson's  Adm'r  v.  Hunt,  381,  615. 


692 


CASES    CITED 
tTh«  flgrures  refer  to  pages] 


Johnson's  Adm'r  v.  Sellers'  Adm'r,  160. 

Johnson's  Adm'x  v.  Railroad  Co.,  403. 

Johnson's  Ex'x  v.  Jennings'  Adm'r,  636, 
641. 

Johnston  v.  Bowersock,  97. 

Johnston  v.  Dahlgren,  326. 

Johnston  v.  Dickson,  422. 

Johnston  v.  Insurance  Co.,  463. 

Johnston  v.  Jones,  113. 

Johnston  v.  McConnell,  326. 

Johnston  v.  Miller,  345. 

Johnston  v.  Oliver,  70. 

Johnston  v.  Patterson,  249. 

Johnston  v.  Russell,  342. 

Johnston   v.  Trask,   123,   534. 

Johnston  v.  Trippe,  149. 

Johnston  v.  Wadsworth,  108,  612. 

Johnston  Harvester  Co.  v.  McLean,  601, 
605. 

Johnstone  v.  Mappin,  90. 

Johnstone   v.   Milling,   560. 

Joice  V.  Taylor,  271. 

Jonassohn  v.  Young,  570. 

Jones  V.  Anderson,  496. 

Jones  V.  Bacon,  88. 

Jones  V.  Bank,  191,  417. 

Jones  V.   Benedict,  5.50. 

Jones  V.  Blocker,  441,  442. 

Jones  V.  Brewer,  189. 

Jones  V.  Brown,  369. 

Jones  V.  Christian,  296. 

Jones  V.  Colvin,  196. 
Jones  V.  Daniel,  35. 

Jones  V.  Dannenberg  Co.,  367. 

Jones  V.  Davis,  111. 

Jones  V.  Degge,  144. 

Jones  V.  Dow,  104. 

Jones  V,  Edney,  208. 

Jones  V.  Flint,  94. 

Jones   V.   George,   580. 

Jones  V.  Grantham,  533. 

Jones  V.  Hoar,  647. 

Jones  V.  Johnson,  .599. 

Jones  V.  Jones,  381. 

Jones  V.  Judd,  503,  648. 

Jones  V.  Just,  580. 

Jones  V.   Lloyd,  307,   308. 

Jones  V.  Perkins,   164,  616. 

Jones  ^.  Pouch,  96. 

Jones  V.   Randall,  435. 

Jones  V.  Reynolds,  126,  127.    " 

Jones  V.  Risley,  159. 

Jones  V.   Rittenhouse,   154. 

Jones  V.    Ryde,    587,    641. 

Jones  V.   Shale,   346. 

Jones  V.  Stanly,  441. 

Jones  V.  Thomas,  448. 

Jones  T.  .Turner.   303. 

Jones  V.  Tye,  107. 

Jones  V.  U.  S.,  270,  514,  551,  579,  591, 

592. 
Jones  V.  Valentines'   School  of  Telegra- 
phy, 193.  215. 
Jones  V.  Williams,  62,  549. 
Jones  T.  Wilson,  162. 
Jones'  Adm'r  v.  Perkins,  225. 
Jones    &    Hotchkiss    Co.    v.    Davenoort. 

540. 
Jordan  v.  Coffield,  193,  194. 


Jordan  v.  Davis,  66. 

Jordan  v.  Dayton,  325. 

Jordan  v.  Miller,  97. 

Jordan   v.   Norton,   34. 

Jordan  v.  Osgood,  274. 

Jordan  v.  Parker,  296. 

Jordan  v.  Thornton,  466. 

Jordan  v.  Westerman,  383. 

Jordan  &  Davis  v.  Annex  Corp.,  292. 

Josling  v.  Kingsford,  580. 

Joslyn  V.  Parlin,  458. 

Joy  V.  St.  Louis,  504    507. 

Judd  V.  Harrington,  395. 

Judd  V.  Weber,  288. 

Judkins  v.  Walker,  219. 

Judson  V.  Corcoran,  465. 

Judy  V.  Louderman,  142. 

Juilliard  v.  Chaffee,  490. 

Jump  V,   Johnson,   437. 

Junkans  v.  Bergin,  61. 

Justice  V.  Lang,  14,  111,   13L 

Juzan  V.  Toulmin,  273. 

K 

Kadish  v.  Young,  558,  560. 

Kafes  V.  McPherson,  462. 

Kagel  T.  Totten,  248. 

Kahn   v.   Walton,   346,   430. 

Kalmbach  v.  Foote,  631. 

Kamena  v.  Huelbig,  463,  465. 

Kane  v.  Hood,  567. 

Kansas  City,  M.  &  B.  R.  v.  Robertson. 
460. 

Kant  V.  Rice,  368. 

Kantrowitz  v.  Prather,   239. 

Katz  V.  Bedford,   540. 

Katz  V.  !Moessinger,  174. 

Kauffman  v.  Raeder,  566. 

Kaufman   v.   Bank,   448. 

Kaufman  v.   Mfg.  Co.,  56. 

Keadle  v.   Siddens.  85. 

Keady  v.  United  Rys.  Co.,  379. 

Keane  v.   Boycott,   186,  202, 

Kearley  v.  Thomson.  426, 

Kearney  v.  Taylor,  319. 

Kearon  v.  Pearson,  591. 

Keasley  v.  Thomson,  427. 
Keates  v.   Lord  Cadogan,  274- 
Keating  v.   Price,   268.   271. 
Keeble  v.  Cummins.   224, 
Keeble  v,  Keeble,  516, 
Keedy  v.  Long,  538. 
Keedy  v.  Moats,  67. 
Keefer  v.  Zimmerman,  599. 
Keeler  v.   Clifford,  542. 
Keeler  v.  Herr,  540. 
Keeler  v.   Taylor,   72.  380. 
Keen  v,  Beckman,  492. 
Keene  v.   Sage,  447. 
Keene  v.  Weeks,  605. 
Keener  v.  Crull,  175. 
Keenholts   v.   Church,   637. 
Keep  V.  Goodrich,  146,  149. 
Keesling  v.  Frazier,  88. 
Keffer  v.  Grayson,  73,  157, 
Kehoe  v.   Patton,  450. 
Keightley  V.  Watson,  480,. 520. 
Kein  v,  Tupper,  19. 


CASKS   CITED 
[The  figuree  refer  to  pages] 


693 


Keir  v.  Leeman,  367. 

Keiser  v.   Decker,  337. 

Keith   V.    Goodwin,  603. 

Keith  V.  Miles,  159. 

Keith  V.  Optical  Co.,  387. 

Keller  v.  Ashfoid,  447,  4501 

Keller  v.  Holderman,  51, 

Keller  v.  Orr,  285. 

Keller  v.  Ybarru,  52,  56. 

Kellett   V.   Robie,  523,  526. 

Kelley  v.  Caplice,  313. 

Kelley  v.   Davis,   198,   645. 

Kelley  v.  Insurance  Co.,  167. 

Kelley,    Maus  &  Co.   v.  Hart-Parr  Co., 

512. 
Kellogg  V.  Krauser,  463. 
Kellogg  V.  Olmsted,  157. 
Kellogg  V.   Richards,   163. 
Kellogg  V.  Robinson,  470. 
Kellogg  Bridge  Co.   v.  Hamilton,  580. 
Kelly,  In  re,  49. 
Kelly  y.  Bliss,  524. 
Kelly  V.  Bradford,  541. 
Kelly  V.  Roberts,  450. 
Kelly  V.  Solari,  258,  638. 
Kelly  V.  Thuey,  107. 
Kelsea  v.  Mfg.  Co.,  29. 
Kelsey  v.  Hobby,  300. 
Kemble  v.  Farren,  516,  518,  519. 
^emensky   v.    Chapin,    128,    129,   132. 
Kemmitt  v.  Adamson,  339. 
Kemp  V.   Fender,  628. 
Kemp  V.  Humphreys,  513. 
Kemp  V.  Walker,  66. 
Kemp's  Ex'x  v.  McPherson,  463. 
Kempner  v.  Cohn,  31,  39,  42. 
Kempner  v.  Gans,  93. 
Kendall  v.  Hamilton,  477. 
Kendall  v.   May,   226. 
Kendall  v.  West,  536. 
KendaU  v.   Wilson,  283. 
Kendrick   v.   Neisz,    174,   187,  208,   209, 

210. 
Kennebec  Co.  v.  Augusta  Ins.  &  B.  Co., 

492. 
Kennedy  v.  Baker,  210. 
Kennedy  v.  Bender,  294. 
Kennedy  v.  Brown,  172. 
Kennedy  v.  Ehlen,  113. 
Kennedy  v„   Insurance   Co..   631. 
Kennedy  v.  Owen,  471. 
Kennedy  v.  Panama,  etc.,  Co.,  271, 
Kennedy   v.   Poor,   577. 
Kennedy  v,   Roberts,  298. 
Kennemore   v.   Kennemore,   118; 
Kenner  v.   Harding,   275. 
Kennerty  v.  Etiwan  Phosphate  Co.,  246. 
Kensington,  The,  435. 
Kent  V.  Carcaud,  271. 
Kent  V.  Kent.  96,  97. 
Kent  V.  Rand,  175. 
Kentucky  v.   Bassford,  434. 
Kenyon  v.  Association,  546. 
Kepner  v.  Keefer,  329. 
Keppell  T.  Bailey,  47L 
Kerkhof  v.    i'apur  Co..   130. 
Kerley  v.  Mayer,  594. 
Kerns  v.  Ilagenbuchle,  383. 
Kerr  ▼.  Brunton,  371. 


Kerr  v.  Hill,  94. 

Kershaw  v.  Kelsey,  182. 

Kerwin  v.  Doran,  433. 

Kessler  v.   Smith,  131. 

Kessler's  Estate,   In  re,  92. 

Ketchum  v.  Catlin,  252. 

Ketchum  v.   Evertson,  650. 

Kettle    River    R.    Co.    v.    Railway    Co.. 

468,  472. 
Keuka  College  v.  Ray,  147,  148. 
Keyes  v.  Allen,  85. 
Kidder  v.  Blake,  408. 
Kidder  v.  Kidder,  525,  615. 
Kidder  v.  Norris,  549. 
Kidney  v.  Persons,  632,  033. 
Kidney  v.   Stoddard,   275. 
Kiewert  v.  Rindskopf,  633,  634. 
Kihlberg  v.  U.  S.,  577. 
Kilcrease  v.   Johnson,  434. 
Kilgore    v.    Baptist    Educational    Ass'n, 

562. 
Kilgore  v.  Rich,  194,  197. 
Kilkelly  v.    Martin,   601,   602. 
Killmore  v.   Howlett,   94. 
Kilmer  v.  Smith,  258. 
Kimball,  The,  547. 
Kimball  v.  Bangs,  282, 
Kimball  v.  Cuddy,  225. 
Kimball  v.  Morton,  612. 
Kimball  v.  Noyes,  451. 
Kimball  &  Austin  Mfg.  Co.  T.  Vroman, 

535. 
Kimbrough  v.  Lukins,  337. 
Kimmell  v.  Skelly,  285. 
Kincaid  v.  School  Dist.,  555. 
Kine  v.  Turner,  362. 
King  V.  Bushnell,  120. 
King  V.  Cummings,  224. 
King  V.  Doolittle,  252. 
King   V.    Duluth,   577. 
King   V.   Faist,  526. 
King  V.  Finch,  555. 
King  V.  Fleming,  331. 
King  V.    Gillett,   525. 
King  V.  Hoare,  477,  520. 
King  v.  Holbrook,  501. 
King  V.  Kaiser,  91. 
King  V.  Kersey,  563. 
King  V.  King,  381,  407.  408. 
King  V.  Railway  Co ,   159. 
King  V.  Summitt,  82. 
King  V,  Warfield,  25. 
King  T.   Welcome,  120,  642,  651 
King  V.    Wight,  471. 
King  V.  Wood,  107. 
King  V.  Woodbridge,  609. 
King  V.  Woodruff,  19 
King    Iron    Bridge    &    Mfg.    Co.   t.    St. 

Louis,  513. 
King   of    Prussia    v.    Kuepper's    Adm'r, 

18L 
King  of  Spain   v.  Oliver,  181. 
King  Philip  Jlills  v.  Slater,  571 
Kinghorne  v.  Telegraph  Co.    52. 
Kingman  v    Iteinemer,  285 
Kingman  &  Co.  v.  Stoddard,  292. 
Kingsbury  v.    Burrill,   401 
Kingsbury  v.  Kirwan,   344, 
Kingsbury  v.  Sargeui,  302. 


694 


CASES    CITED 
[Tb«  figures  refer  to  pages] 


Kingsley  v.  White,  130. 

Kingston  Banlc  v.   Eltinge,  638. 

Kingsville  Preserving  Co.  v.  Frank,  617. 

Kinuey  v.  Association,  368. 

Kinney  v.  Federal  Laundry  Co.,  567. 

Kinney  v.  McDermott,  333. 

Kinuey  v.  Railroad  Co ,  19. 

Kintzing  v.  McElrath,  276. 

Kinzer  Const.  Co.  v. 'State,  598. 

Kirby  v.  Harrison,   513. 

Kirkham  v.  Marter,  82. 

Kirkland  v.  Benjamin,  368. 

Kirkland  v.  Randon,  342. 

Kiriipa trick  v.  Adams,  430. 

Kirispatrick  v.  Gallagher,  22. 

Kirkpatrick  v.  Puryear,  546. 

Kirkpatrick  v.  Reeves,  285. 

Kirkpatrick  v.  Taylor,  135. 

Kirksey  v.  Kirksey,  50. 

Kissam  v.  United  States  Printing  Co.  of 

Ohio,  401. 
Kitchen  v.  Lee,  213. 
Kitzinger  v.   Beck,  463. 
Klapp  V.  Kleckner,  481. 
Kleckley   v.   I^yden,  322. 
Klee  V.  Grant,  41. 
Kleeman   v.   Frisbie,  463. 
Kleinsorge  v.  Rohse,  501. 
Kline  v.  Beebe,  206. 
Kline  v.  L'Amoureux.  195,  196,  198. 
Kline   v.   Ragland,   552. 
Knapp   v.   lianley,  475. 
Knapp  v.  Iloyt,  174. 
Knapp  V.  Insurance  Co.,  450. 
Knappen  v.   Freeman,  286. 
Knevals  v.  Blauvelt^  460. 
Knight  V.  Abbott,  5y4. 
Knight  V.  Cooley,  51. 
Knight  V.  Lee,  431,  437. 
Knight  V.  McKiuney,  620. 
Knight  V.   Mann,   127. 
Knight  V.  Savvin,  372. 
Knight  V.  Worsted  Co.,  583. 
Knights    of    the    Modern    Maccabees    v. 

Sharp,   446. 
Knisely  v.   Shenberger,  506. 
Knott  V.  Tidyman,  310. 
Know!  tun  v.  Keenan,  280. 
Knowlton  v.  Parsons,  476 
Knowlton   v.   Spring  Co.,  426. 
Knox  V.  Flack,  191. 
Knox  V.  Haug,  228. 
Knox  V.  INIartin,  371. 
Kuox  V.   White,  422. 
Knox   Rock   Blasting  Co.   v.   Stone   Co., 

518. 
Koch  V.  Roth,  549. 
Koch  V.   Williams,  119,  651. 
Koehler  v.   Buhl,   5.36. 
Kohl  V.  Lindley,  275. 
Kohn  V.   Melcher,   414. 
Kollitz  V.  Equitable  Mut.  Fire  Ins.  Co., 

554. 
Koontz  V.  Bank,  638. 
Kopp  V.  Reiter,  113. 
Korne  v.  Korne,  154. 
Kortright  v.  Cady,  553. 
Kountz   V.   I' rice,   3;i2,  333. 
Kowalke  v.  Light  Co.,  254. 


Kozel  V.  Dearlove,  113. 

Kraker  v.  Byram,  196. 

Kramer  v.  Old,  389. 

Kranich  v.  Sherwood,  488. 

Krause  v.  Board  of  Trustees,  648. 

Krause  v.  Busacker,  285. 

Krebs  v.  O'Grady,  238. 

Kreitz  v.  Behrensmeyer,  182, 

Kribben  v.  Haycraft,  356. 

Kriete  v.  Myer,   105. 

Kriger  v.  Leppel,  119,  651. 

Krohn  v.  Bantz,  110. 

Krumer  v.   Heim,  615. 

Kronschnabel-Smith    Co,    v.    Kronscbna- 

ble,   386. 
Kruschke  v.  Stefan,  299. 
Kuecken  v.  Voltz,  505. 
Kuhn  v.  Poole,  T9. 
Kuhns  V.  Gates,  332. 
Kulen  Kemp  v.  Vigne,  343. 
Kullman   v.   Greenebaum,   318. 
Kunkel  v.  Wherry,  517. 
Kyger  v.  Sipe,  202. 
Kyle  V.  Fehley,  501. 
Kyle  v.  Kavauagh,  253. 
Kyuer  v.  Boll,  257. 
Kynnaird  v.  Leslie,  184. 


Laclede  Bank  v.  Schuler,  465. 

Lacy   v.   Getman,  474. 

Lacy  V.  Green,  505 

Lacy  V.  Pixler,  206.  211,  215,  221. 

Ladd  V    Dillingham,  408. 

Ladd  V.  King,  534. 

Ladd  V.   Rogers,  332. 

La  Du-King  Mfg.  Co.  v.  La  Du,  114. 

La  Fayette  &  Bro.  v.  Merchants'   Bank, 

639. 
Lafferty  v.  Jelley.  373. 
Laflin  v,  Howe,  642. 
Lagerfelt  v.  McKie.  79. 
Lagonda  Nat.  Bank  v.  Portner,  422. 
Laidlaw  v.  Organ,  273,  276,  277. 
Lake   v.    Perry,  216,  222. 
Lakeman  v.  I'ollard.  596,  597,  598,  648. 
Lake  Shore  &  M.  S.  Ry,  Co.  v.  Spang- 

ler.  403. 
Lakeside  Land  Co.  v.  Dromgoole,  50. 
Lamare  v.   Dixon,  270. 
Lamb  v.  Crafts.  123,   125. 
Lamb  v.  Henderson,  497. 
Lamb  v.  Lathrop,  552. 
Lambert  v.  Heath,  587,  642. 
Lambert    Hoisting    Engine    Co.    v.    Pas- 

chall,  505. 
Lamberton  v.  Dunham,  286. 
Lamine  v.  Dorrell,  632. 
Lamkin  v.  Manufacturing  Co.,  103. 
Lamkin  &  Foster  v.  Le  Doux,  207. 
L'Amoreux  v.  Gould,  149,  160. 
Lampleigh  v.  Braithwait,  171,  172. 
Lampman  v.  Cochran,  518. 
Lamprey  v.  Lamprey,  162. 
Lancaster  v.  Elliott,  27. 
Lancaster  Nat.  Bank  v.  Taylor,  407. 
Lancy  v.  Havender,  373. 
Landa  v.  Obert,  299. 


CASES    CITED 
[The  figures  refer  to  pages] 


695 


Landa  v.  Shook,  596. 

Landers  r.  Bolton,  486. 

Landon  v,  Hutton,  525. 

Lane  v.  Insurance  Co.,  339. 

Lane  v.   Iron  Co.,  214. 

Lane  v.  Shackford,  100,  114. 

Lane  v.  Smith,  463. 

Langan  v.  Iverson,  99. 

Langdon  v.  Clayson,  21L 

Langdon  v.  Conlin,  364. 

Langdon  v.  Mayor,  etc.,  509.> 

Langdon  v.  Richardson,  84. 

Langellier  v.  Schaefer,  37. 

Langenberger  v.  Kroeger,  604. 

Langridge  v.  Levy,  287. 

Langton  v.  Hughes,  415. 

Lankton  v.   Stewart,  161. 

Lansden  v.  McCarthy,  453. 

Lansing  v.  Dodd,  516. 

Lansing  v.  Railroad  Co.,  205. 

Lanzit  v.  Manufacturing  Co.,  388. 

Lapham  v.   Osborne,   650. 

Lapp  V.  Smith,  617.  ' 

Larkin  V.   Hardenbrook,  525. 

Larkin  v.  Lumber  Co.,  19.  * 

Larraon  v.  Jordan,  39,  41,  44. 

Larned  v.  Andrews,  323. 

Laroe  v.  Dairy  Co.,  617. 

Larsen  v.  Breene,  554. 

Larsen  v.  Johnson,  90. 

Larson  v.  Jensen,  83. 

La  Rue  v.  Gilkyson,  226. 

La  Rue  v.  Groeziuger,  458. 

Lash  V.  Parlin,  492. 

Laswell  v.  National  Handle  Co.,  573. 

Latchford,  Succession  of,  334. 

Latham  v.  Hartford,  555. 

Latham  v.   Udell,   306. 

Lathrop  v.  Knapp,  147. 

Lathrop  v.  President,  etc.,  373. 

Lattimore  v.   Harsen,   160. 

Lattimore  v.  Simmons,  474. 

Lauer  v.  Lee,  523. 

Lauer  v.  Mercantile  Inst.,  103. 

Law  V.  Law,  352. 

Law  V.  Long,  212. 

Law's  Ex'rs  v.  Sutherland,  336. 

Lawing  y.  Rintles,  591. 

Lawrence  v.  Bank,  638. 

Lawrence  v.  Cooke,  100. 

Lawrence  v.  Davey,  160. 

Lawrence  v.  Dole,  533. 

Lawrence  v.  Fox,  448. 

Lawrence  v.  Gayetty,  280. 

Lawrence  v.  Kidder,  143. 

Lawrence  v.  McCalmont,  141,  510. 

Lawrence  v.  Miller,  532,  579. 

Lawrence  v.  Oglesby,  136. 

Lawrence  v.  Railroad  Co.,  26,  36,  53. 

Lawrencg  v.  White,   594. 

Lawrence  v.  Willis,  224. 

Lawrence's  Lessee  v.  McArter,  191. 

Lawson  v.  Hogan,  528. 

Lawson  v.  Lovejoy,  209. 

Lawson's  Ex'rs  v.  Lawson,  623,  631. 

Lawton  v.  Blitch,  344. 

Layman  v.  Conrey,  306. 

Leach  v.  Nichols,  249. 

Leach  t.  Tilton.  590. 


Leacox  v.  Griffith,  207. 

Leadbetter  v.  Hawley,  2. 

Leake  v.  Ball,  85. 

Leask  v.  Dew,  554. 

Leatherberry  v.   Odell,  538. 

Leather  Cloth  Co.  v.  Hieronimus,  534. 

Leavitt  v.  Investment  Co.,  510. 

Leavitt  v.  Palmer,  407. 

Leavitt  v.  Sizer,  285. 

Leavitt  v.  Stern,  531. 

Lebby  v.  Ahrens,  289. 

Lecomte  v.  Toudouze,  92. 

Ledbetter  v.  Davis,  283. 

Ledbetter  v.  McGhees,  85. 

Lee  V.  Adkins,  64,  65. 

Lee  V.  Burnham,  292,  294. 

Lee  V.  Butler,  110. 

Lee  V.  Cherry,  56,  102,  109. 

Lee  V.  Early,  549. 

Lee  V.  Gaskell,  93. 

Lee  V.  Griffin,  46,  124. 

Lee  V.  Hawks,  534. 

Lee  V.  Manley,  550. 

Lee  V.  Merrit,  631. 

Lee  V.  Muggeridge,  136,  170.  174. 

Lee  V.  Murdock,  602. 

Lee  V.  Starbird,  602. 

Lee  V.  Yandell,  231. 

Lee's  Adm'r  v.  Hill,  98,  lOL 

Leeds  v.  Gifford,  550. 

Leeds  v.  Little,  540. 

Leeson  v.  Anderson,  161. 

Leete  v.  Mining  Co.,  509. 

Le  Fevre  v.  Le  Fevre,  533. 

Lefferts  v.  Weld,  514. 

Legge  v.  Harlock,  516. 

Le  Grand  v.  Bank,  274,  296. 

Le  Grange's  Lessee  v.  Ward,  61. 

Legro  v.  Staples,  455. 

Lehigh  Coal  &  Nav.  Co.  v.  Brown,  635. 

Lehigh  Valley  Coal  Co.  v.  Curtis,  39. 

Lehigh  Val.  R.  Co.  v.  Woodring,  459. 

Lehman  v.  Feld,  431,  433. 

Lehmann  v.  Schmidt,  647. 

Leighton  v.  Orr,  310. 

Leinss  v.  Weiss,  228. 

Leitch  V.  Northern  Pac.   R.  Co.,  459. 

Lemans  v.  Wiley,  635,  638. 

Lemmon  v.  Beeman,  187,  214,  215. 

Lemon  v.  Randall,  120. 

Lemp  Brewing  Co.  v.  Secor,  25. 

Lennon  v.  Napper,  513. 

Lennox  v.   Murphy,   28,  30. 

Lente  v.  Clarke,  107. 

Lenz  v.  Brown,  56. 

Leonard  v.  Barker,  618. 

Leonard  v.  Davis,  130. 

Leonard  v.  Dyer,  573. 

Leonard  v.  Hughlett,  71. 

Leonard  v.  Leonard,  228. 

Leonard  v,  Medford.  94. 

Leonard  v.  Patton,   3;)7. 

Leonard  v.   Phillips,  601. 

Leonard  v.  I'oole,  395. 

Leonard  v.   Southern   Power  Co.,  283. 

Leonard  v.  State,  10. 

Leopold  V.  Sal  key,  594. 

Leppla  V.  MacUey,  469. 

Leppoc  V.  Bank,  67, 


696 


CASES    CITED 
[The  fibres  refer  to  pages] 


Lerch  v.  Gallop,  88. 

Lerned  v.  Johns,  104. 

Lerned   v.   Wannemacher,   102. 

Leroux  v.   Brown,   114,   121. 

Leschen  &  Sons  Kope  Co.  T.  Mayflower 

S.  Al.  &  R.  Co.,  547. 
Leskie  v.  Haselstine,  51. 
Leslie  v.  Casey,  578. 
Leslie  v.  Lorillard,  360. 
Lester  v.  Bank,  321. 
Lester  v.  Buel,  345. 
Lester  v.   Heidt,  105. 
Lesure   Lumber    Co.    v.    Insurance    Co., 

Leutliold  v.  Stickney,  322, 
Leverenz  v.  Haines,  151. 
Levering  v.  Heighe,  203. 
Levey   v.  Allien,  340. 
Levey  v.  Railroad  Co.,  56. 
Levi  V.  Marsha,  238. 
Levy  V.  Cohen,  31. 
Levy  V.  Ford,  529. 
Levy  V.   Spencer,  378. 
Lewis   v.   Alexander,   417. 
Lewis  V.  Arbuckle,   22G. 
Lewis  V.  Bannister,  303. 
Lewis  V.  Brass,  53. 
Lewis  V.  Bright,  324. 
Lewis  V.   Broun,  372. 
'Lewis  V.  Browning,  33. 
Lewis  V.  Bruton,  426. 
Lewis  V.  Gay,  524. 
Lewis  V.  Insurance  Co.,  266,  611. 
Lewis  V.  Kramer,  602. 
Lewis  y.  Lee,  237. 
Lewis  V.  Littlefield,  342. 
Lewis  V.  Payn,  004. 
Lewis  V.  Prather,   113. 
Lewis  V.  Railroad  Co.,  577. 
Lewis  V.  Rountree,  581,  585. 
Lewis  V.    Sawyer.   447. 
Lewis  V.  Say,  533. 
Lewis  V.  Tapman,  89,  561. 
Lewis  V.  Tappan,  lOQ. 
Lewis. V.   Welch,  322,  327. 
Lewis  V.   ^Yilloughby,  488, 
Lewis  V.  Wood,  104. 
Lewis'  Ex'rs  v.  Overby'e  Adm'ra,  65. 
Lexington  Fire,  Life  &  Marine  Ins.  Co. 

V.  Paver,  266. 
Libby   v.  Robinson,  631. 
Liberty  Wall-Paper  Co.  v.  Stoner  Wall- 

Paper  Mfg.   Co.,  45S. 
Lieberman  v.  Brothers,  477. 
Liening  v.   Gould,   161. 
Light  foot  V.  Tenant,  415, 
Lighthall  v.  Moore,  302. 
Ligon  V.  Wharton,  53. 
Lillie  V.  Dunbar,  94. 
Lilly  V.  Tobbein.  452. 
Lilly  v.   Waggoner,  225. 
Lillywhite  v.  Devereux,  129. 
Lincoln  v.  Buckmaster,  230. 
Lincoln  v.  Granite  Co^  517. 
Lincoln  v.  Preserving  Co.,  5L 
Lindell  v.  Rokes,  142. 
Lindley  v.  Groff,  504. 
Lindley  v.  Hofman.  248. 
Lindley  v.  Lacy,  492, 


Lindsay  v.  Matthews,  556, 

Lindsay  v.  Smith,  409. 

Lindsay  Pet.  Co.  v.  Hurd,  279. 

Lindsey,  Appeal  of,  22. 

Lindsley  v.  Railroad  Co.,  537. 

Liness  v.   Hesing,  363. 

Lingenfelder  v.  Brewing  Co.,  159. 

Linhart  t.  State,  186. 

Lining  v.  Geddes,  612. 

Lininger  &  Metcalf  Co.  t.  Wheat,  30, 

Linington  v.   Strong,   283,  618. 

Link  V.  Clemmens,  329. 

Linn  v.   Sigsbee.  143,  387,  391. 

Linneman  v.  Moross'  Estate,  445.  448, 
529. 

Linton  v.  Insurance  Co.,  337. 

Linz  V.   Schuck,  159. 

Lipp  V.  Hunt,  117. 

Lipscomb  v.  Lipscomb,  490. 

Lipsmeier  v.  Vehslage,  15L 

Liska  T.  Lodge,  246. 

Lisle  V.  Rogers,  602. 

Litchfield  v.  Garratt,  529. 

Litchfield  v.  Hutchinson,  28S. 

Lithgoe  V.  Vernon,  633. 

Litt  V.   Martindale,  G34. 

Little  V.  Bank,  455. 

Little  V.   Blunt,   175. 

Little    V.    Dougherty,    103. 

Little  V.  Edwards,  SO,  87. 

Little  V.  Little.  246. 

Little  V.  Martin,  650. 

Little  V.   Mills,  421. 

Littlefield  v.  Bank,  403,  464. 

Little  Rock  &  Ft  S.  Ry.  Co.  t.  Cravens,. 
302. 

Litton  V.  Baldwin,  239. 

Litz  v.  Goosling,  41. 

Liverpool  Adelphi  Loan  Ass'n  v.  Fair- 
hurst,  237. 

Liverpool  &  G.  W.  Steam  Co.  v.  Insur- 
ance Co.,  436. 

Liversidge  v.   Broadbent,  456,   457,  529. 

Livingston  v.  Iron  Co.,  268. 

Livingston  v.  Maryland  Ins.  Co.,  260. 

Livingston  v.  Page,  363. 

Livingston  v.  Railli,  368. 

Lla nelly  Ry.  &  Dock  Co.  v.  Railway 
Co.,  020. 

Lloyd  V.  Fulton,  90. 

Lloyd  V.  Jewell,  589. 

Llovd  V.  Keach,  335. 

Lloyd  V.  Scott,  334,  335,  837,  339,  340, 

Lobenstein  v.  U.  S.,  150. 

Locke  V.   Smith,  199. 

I^ockhart  v.   HuUimger,   363. 

Lockwood  V.  Fitts,  279,  282,  293. 

Lockwood  V.  Robbins,  18. 

Lodge  V.  Dicas,  476. 

Lodse  V.   Hulings,  151. 

Loeffel  V.  Pohlman,  296. 

Loewer  v.   Harris,  276,  288. 

Logan  V.  Gardner,  190. 

Logan  V,  Plummer,  72. 

Logan  V.  Trayser,  482,  628. 

Logan  V.  Wallis,  647. 

Logan  County  Nat.  Bank  y.  Townsend,. 
243. 

Lombard  v.  Cobb,  521. 


CASES    CITED 
[The  figures  refer  to  paces] 


6&T 


Lomerson  v,  Johnston,  275,  304. 

London  Assurance  v.  Mansel,  267. 

London  &  N.  Bank,  In  re,  33. 

London  &  N.  W.  R.  Co.  v.  Price,  242. 

London  &  S.  F.  Bank  v.  Parrott,  510. 

Lonergan  v.  Buford,  302. 

liong  V.  Caffrey,   506. 

Long  V.  Davidson,  496. 

Long  V.  Fox,  233. 

Long  V.  Hartwell,  93,  534, 

Long  V.  Miller,  110. 

Long  V.  Mulford,  310. 

Long  V.  State,  347. 

Long  V.  Towl,  153,  388. 

Long  V.  Warren,  284. 

Long-Bell  Lumber  Co.  v.  Stump,  510. 

Long  Champs  v.  Kenny,  629. 

Longley  v.  Griggs,  482,  628. 

Longridge  v.   Dorville,   154. 

Longworth  v   Mitchell,  38. 

Lonsdale  v.  Brown,  171,  174, 

Loomis  V.  Insurance  Co.,  344. 

Loomis  V.   Newhall,  406. 

Loomis  V.  O'Neal,  633. 

Lord  V.  Goddard,  286. 

Lord  V.  Thomas,  500. 

Lord  V.   Wheeler,   595. 

Lord  Bolton  v.  Tomlin,  79. 

Lorenzen  v.  Investment  Co.,  290. 

Ix)rillard  v.  Clyde,  449,  508. 

Loiing  V.  Boston,  39,  45,  47,  48. 

Loring  v.  Cooke,  555. 

Loser  v.  Board,  354. 

Loud  V    Water  Co.-.  567,  568. 

Loudenback  Fertilizer  Co.   v.  Phosphate 

Co.,  149.  I 

Loughborough  v.  McNevin,  556.  I 

Louisville  Asphalt  Varnish   Co.  v.   Lor-  , 

ick,  103,  109.  ' 

Louisville  N.  A.  &  C.  R.  Co.  v.  Sumner,  I 

359.  ; 

Louisville  R.  Co.  v.  Goodbar,  458. 
Louisville,   St.   L.   &  T.   R.   Co.  v.  Nea- 

fus,  488.  I 

Louisville  &  N.   R.  Co.   v.  Cooper,  285.  i 
Louisville  &  N.  R.  Co.  v.  Dies,  403. 
Louisville  &  N.  R.  Co.  v.  Grant,  403.      | 
Louisville  &  N,  R.  Co.  v.  Mottley,  593 
Louisville  &  N.  R.  Co.  v.  Orr,  402. 
LouisviUe  &  N.  R.  Co.  v.  Philyaw,  115 
Love  V.  Buckner,  351. 
Love  V.  Harvey,  342. 
Love  V.  Moynehan,  236. 
Love  V.  State,  300. 
Love  V.  Welch,  111. 
Love  V.  Wells,  331. 
Lovejoy  v.  Howe,  449. 
Lovejoy  v.  Isbell,  283. 
Lovejoy  v.  Whipple,  332. 
Lovell  V.  Insurance  Co.,  563. 
Lovell  V.  Wall,  256. 
Lovelock  v.  Franklyn,  562,  563. 
Levering  v.  Lovering,  562. 
Low  V.  Andrews,  121. 
Low  V.  Forbes,  533. 
Low  V.  Hutchison,  372. 
Low  V.  Low,  117. 
Lowber  v.   Bangs,  261.  566,  582. 
Lowe  T.  Bryant,  137. 


Lowe  V.  Hamilton.  88, 

Lowe  V.  Harris,  107. 

Lowe  V.  Peers,  381. 

Lowe  V.   Sinklear,  219. 

Lower  v.  Schumacher,  229. 

Lowery  v.  Cate,  220. 

Lowndes  v    Chisholm,  256,  281. 

Lowry  v,  Drake's  Heirs,  212. 

Lowry  v.  Mehaffy,  507. 

Lowry  v.  Thompson,  180.    . 

Lozear  v.  Shields,  225. 

Lubbock  v.  Tribe,  629. 

Lubert  v.  Ghauviteau,  633. 

Lucas  V.  Allen,  158. 

Lucas  V.  Coulter,  274. 

Lucas  V.  Dixon,  102. 

Lucas  V.   Harper,  342. 

Lucas  V.  Turnpike  Co.,  470. 

Lucas  V.  Waul,  422. 

Luce  V.  Jestrab,  217,  218. 

Lucke  V.  Clothing  Cutters,  441. 

Luckey  v.  St.  Louis  &  S.  F.  R.  Co.,  3. 

Ludington  v.  Bell.  530. 

Ludlow  V.  Hardy,  171,  175. 

Ludlow  V.  Simond,  65. 

Ludlow  V.  Van  Rensselaer,  436. 

Lufkin  V    Mayall,  219. 

Lufkin  Rule  Co.  v.  Fringeli,  388. 

Lukens  v.  Haziett,  334,  340. 

Lum  V.  McEwen,  380. 

Lumley  v.  Wagner,  613. 

Lumsden's  Case,  201. 

Lundberg  v.  Elevator  Co.,  151. 

Lungstrass  v.  Insurance  Co.,  42. 

Lunt  V.  Stevens,  478. 

Lupton  V.  Freeman,  548. 

Lurton  v.  Gilliam,  480. 

Lusk  V.  Throop,  84. 

Lutz  V.  Thompson,  566,  578. 

Luzader  v.  Richmond,  116. 

Lyell  V.  Walbach,  237. 

Lyford  v.  Railroad  Co..  468,  471. 

Lyman  v.  Babcock,  Pl8. 

Lyman  v.  Railroad  Co.,  359. 

Lyman  v.  Robinson,  52. 

Lynch  v.  Doran,  224. 

Lynch  v.  Murphy,  279. 

Lynch  v.  Rosenthal,  347. 

Lynn  v.  Bruce,  165,  615. 

Lyon  v.   Bertram,  587. 

Lyon  V.  King,  97. 

Lyon  V.  Lenon,  492. 

Lyon  V.   Mitchell,  357. 

Lyon  V.  Respass,  417. 

Lyon  V.  Strong,  328. 

Lyon  V.  Waldo.  420. 

Lyons  v.  Ilodgen,  345. 

Lytle  V.  Newell,  377. 

M 

McAdams'  Ex'rs  v.  Stilwell,  486. 
McAleer  v.  Horsey,  281. 
McAllister  v    Hoffman,  426. 
McAllister  v.  Reab,  589. 
McAndrcw  v.  Chappie,  583. 
McAnnulty  v.  McAnuulty,  90,  102. 
McArthur  v.  Board,  520. 
McArthur  v.  Luce,  63S. 


098 


CASES    CITED 
[Th«  figures  refer  to  pages] 


McArthur  v.  Sears,  537, 

McAvoy  V.  Long,  504. 

McKlair  v.  Gibbes,  425. 

McBratney  v.  Chandler.  355. 

McHrajer  v.  Cohen,  112. 

AIcBride  v.  Noble,  549. 

McBride  v.  Publishing  Co.,  285. 

McCabe  v.  Caner,  151. 

McCabe   v.    Gray,   4G4. 

McCall  V.  Nave,  165. 

McCail  V.  Parker,  188. 

McCall  V.  Price,  476. 

McCall  Co.  V.  Icks,  56,  150. 

McCall  Co.  V.  Wright,  392. 

McCall's   Adm'r  v.   Capehart,   317,   372. 

McCandless  v.  Steel  Co.,  158,  353. 

McCann  v.  Eddy,  404 

McCants  v.  Bee,  308,  312. 

McCarren  v.  McNulty,  541. 

McCarter  v.  Armstrong?,  612. 

McCarthy  v.  Association,  159. 

McCarthy  v.  Nash,  127. 

McCarthy  v.  Tanska,  299. 

McCartney  v.  Shenard,  412. 

McCarty  v.  Iron  Co.,  212,  215,  219. 

McCaughey  v.  Smith,  603. 

McCaull   V.  Brahara,  613. 

McCausland   v.   Ralston,  549. 

McClain  v.  Davis,  2;J1.  2:«. 

McClair   v.    Wilson,   298,   303. 

McClanahan  v.  Williams.  212. 

McClatchie  v.  Ilaslam,  304. 

McClay  v.  Hedge,  579. 

McClellan  v.  Filson,  239. 

McClellan  v.    Kennedv,    154. 

McClellan  v.  Robe,  520. 

McClelland  v.   Bank,  319. 

McClelland  v.   Rush,  534. 

McClun  V,  McClun,  227. 

McClure  v.  Briggs,  541. 

McClure  v.  Jefferson,  585. 

McClure  v.  I^ewis,  310. 

McClure  v.  McClure,  154. 

McClure  v.  Otrich,  120, 

McClure  v.  Railroad  Co.,  24. 

McClure  v.    UUmann.   378. 

McClurg  V.   Terry,  51. 

McClurg's  Appeal,  143,  387,  39L 

McCollum  V.   Edmonds,  142. 

McComb  V.  Association,  335. 

Macomb  v.  Wilkinson,  488. 

McCombs  V.  McKennan,  528i. 

McConahey  v.  Griffey,  96. 

McConihe  v.  McMann,  416. 

McConkey   v,   Barnes,   191. 

McConkey  v.  Cockey,  269. 

McConnell  v,   Brillhart,  104,  105. 

McConnell  v.  Kitchens,  322.  320. 

McConnell  v,  McConnell,  192,  198,  382, 

383. 
McCormic  v.  Leggett,  204. 
McCormick  v.  Basal,  5.58,  561. 
McCormick  v.  Dalton,  302. 
McCormick  v.  Holbrook,  239 
McCormick  v.  Littler,  225,  226,  230, 
McCormick  v,   McCormick,  22, 
McCormick  v,  Malin,  310. 
McCormick  Harvester  Co.  v.  Miller,  300. 


McCormick    Harvesting    Mach,    Co,     ▼. 

Chesrown,  542. 
McCormick     Harvesting    Mach.    Co,     v. 

Richardson,  25. 
McCormick     Harvesting    Mach,     Co.    t. 

Wilson,  491. 
-McCotter  v.  New  York,  42. 
•McCowen  v    Pew,  349,  359.  | 

McCoy's  Adm'rs  v,  Bixbee's  Adm'r,  567. 
McCracken   v,   Harned,  39. 
McCrary   v,  iMcFarland,  499, 
McCrea  v,  Purmort,  7U,  488,  031. 
McCreery  v.  Day,  526,  533. 
McCreery's  Lessee  v,  Allender,  182. 
McCrillis  v,  Allen,  250. 
McCrillis   v.   Bartlett,  227,  235. 
.McCrillis  v.   How,   199. 
-McCroskey  v.   Ladd,   567. 
.McCroy  v.  Toney,  101. 
McCulloch   V.   Insurance  Co.,  32. 
.McCullnugh  V,  Ashbridge,  496, 
McCullough  V,  Day,  66, 
McCullough   V.   Ilellwig,  495, 
.McCullough  Iron  Co.  v.  Carpenter,  538, 
McCurdy  v,  Dillon,  3S3. 
McCurry  v.  Gibson,  391, 
McCusktT  V,  Spier,  500, 
McDonald  v,  Aufdengarten,  340,  422. 
McDuuald  V.  Chemical  Nat.  Bank,  34. 
Macdonald  v,  Dana,  494. 
McDonald  v,  Fleming,  377. 
.McDonald  v,  Haughton,  380. 
-Mac Donald  v.  Kneeland,  465. 
.Macdonald  v,  Longbottom,  493, 
McDonald  v,  Lund.  425. 
McDonald  v,  Lvnch,  637.  • 

McDonald   v.    Magruder.   482,   628. 
McDonald   v,   Sargent,   187. 
McDonald  v.  Yuugblutb    119. 
.McDonough  v.  Marble  Co.,   568. 
McDonough  v.  Webster,  426. 
McDougald  v,  Dougherty,  555, 
McDowell   V,   Laev,  451. 
McEacheran  v.  Railroad  Co.,  404. 
McElfatrick  v.   Hicks,  339. 
MacElree  v.  Wolfersberger,  96, 
McElroy  v.  Buck,   103. 
:\lcElroy  v,  Ludlum,  100,  115. 
McElroy  v.  Seery,  104,  110. 
McElroy  v.  Swope,  93. 
McElven  v.  Sloan,   136. 
McFadden  v.  Follrath,  546. 
McFadden   v.    Henderson,  512. 
McFarland  v.   Bank,  .S39. 
McFarland  v,  Sikes,  490. 
McFarlane  v.  Cushman,  619. 
McGan  v    Marshall,   211. 
McGarvy  v.  Roods,  20. 
McGatrick  v,    Wason,  330, 
McGee  v.  Craven,  91. 
McGibbons  v.  Wilder,  28.3. 
McGinn  v.  Tobey,  247,  248,  285,  309. 
McGinnis  v.  Fernandes,  120, 
McGlynn  v,  Scott.  l.")4. 
Mc(ioren   v.  Avery,  641. 
McGovern  v.    Hern,    104. 
Mc(iowan    Commercial   Co,    v.    Midland 

Coal  &  Lumber  Co.,  84, 
McGrath  v.  Cannon,  568. 


CASES  CITED 
[The  figures  refer  to  pages] 


699 


McGrath  v.  Clark,  601,  G02. 

McGrath   v.   Gegner,   554. 

McGrath  v.  Merwin,  331. 

McGraw  v.  Solomon,  296. 

MacGreal  v.  Taylor,  215,  216. 

McGregor  v.  Ealch,  477. 

McGregor  v.  McGregor,  97. 

McGregor  v.  Railway  Co.,  635. 

McGrew  v.  Produce  Exchange,  345. 

McGuffin  V.  Coyle,  380. 

Mclniffe  v.   Wheelock,  555. 

Mcintosh  V.  Johnson,  161. 

Mcintosh  V.  Zaring,  479. 

Mclntyre  v.  Kennedy,  547. 

Mclntyre  v.  Parks,  415. 

Mclsaac   v.   Adams,   197. 

McJilton  V.  Love,  CIS. 

Mack  V.  Mack,  383. 

Mack  V.  MUler,  617. 

McKamy  v.  Cooper,  188,  210,  221. 

McKanna  v.  Merry,   194,  195,  198. 

McKee  v.  Jones,  433. 

McKeever  v.   Beacom,  321. 

McKell   V.    Chesapeake   &    O.    Ry.    Co., 

360. 
McKenna,  Ex  parte,  347. 
McKenna  v.  Kirkwood,  464. 
MacKeosie  v.  Coulson,  501. 
McKenzie  v.  Culbreth,  IGl,  164. 
McKenzie  v.  Donnell,  230. 
Mackenzie  v.   Flannery,  338. 
McKenzie  v.  Harrison,  162,  533. 
Mackenzie  v.  Minis,  536,  542. 
Mackerell  v.  Batcbelor,  193. 
McKewan  v.   Sanderson,  318. 
Mackey  v.   Peterson,  249. 
Mackey   v.   Smith,  84. 
Mackin  v.  Dwyeiy  81. 
Mackinley  v.  McGregor,  236. 
McKinley  v.  Watkins,  25,  149,  154. 
McKinnell  v.  Robinson,  417. 
McKinney  v.  Alvis,  529. 
McKinney  v.  Andrews,  416. 
McKinney  v.  Bradlee,  535. 
McKinney  v.  Harvie,  114,  642,  651. 
McKinnis  v.  Estes,  331. 
McKinnon  v.  McP]wan,  610. 
McKinnon  v.  McKinnon,  93. 
McKinnon  v.  VoUmar,  268. 
Macklem  v.  Fales,  282. 
McKnight  v.  Broadway  Inv.  Co.,  105. 
McKnight  V.   Dunlop,   127, 
MacK night    Flintic   Stone    Co.    v.    New 

York,  577. 
McLanahan  v.  Insurance  Co.,  266. 
Maclay   v.   IIar\'ey,   33,   35,   38. 
McLean  v.  McBean,  137. 
McLean    v.    Windham    Light    &    Power 

Co.,  504,  508. 
McLean   v.    Windham   Light  &   Lumber 

Co.,  506,  513. 
McLellan  v.  Bank,  478. 
McLennan  v.   McLennan,  433. 
McLeod  V.  Barnum,  5S9. 
McLeod  V.  Hendry,  117. 
Maclure,  Ex  parte,  5(14,  651. 
McMahan  v.  Smith,  .'506. 
McManus  v.  Bank,  615. 
McManus  t.  Boston,  103. 


McManus  v.  Cooke,  116. 

McMaster  v.  Alerrick,  549. 

McMasters  v.  Railroad  Co.,  497. 

.McMichael  v.  Carlyle,  67. 

McMicken  v.  Safford,  152. 

McMillan  v.  Ames,  41,  72. 

McMillan  v.  Fox,  596. 

McMillan  v.   Harris,  319. 

McMillan   v.    Page,   22. 

McMinn  v.   Richmonds,  199. 

McMullen    v.    Hoffman,    350,    362,    407, 

424,  425. 
McMurphy  v.  Garland,  531. 
McMurtry  v.  Kentucky  Central  R.  Co., 

640. 
:\IcNair  v.  Toler,  183. 
McNairy  v.  Bell    337. 
McNaughten  v.  Partridge,  71. 
INIcNeil   V.   Armstrong,  543. 
McNish  V.  Reynolds,  527.  533. 
Macomb  v.  Wilkinson,  488. 
Mcl'arland  v.  Larkin,  307,  309,  310. 
Mcl'berson  v.  Cox,  96,  302,  303,  374. 
McPherson  v.   Robertson,  518. 
McPherson  v.  Ryan,  610. 
McQuade  v.  Rosecrans,  407.' 
McRaven  v.  Crisler,  605. 
McShane  v.  Hazlehurst,  292. 
McSparran   v.   Neeley,  235. 
Mactier's   Adm'rs   v.   Frith,   27,   31,   32, 

34,  38,  46. 
Mc^'eigh  V.  United  States,  183. 
McWhinne  v.  Martin,  117. 
McWilliams  v.  Webb,  450. 
Maddison  v.  Alderson,   116. 
Maddox  v.  Simmons,  225. 
Maddux  v.   Bevan.  163. 
Madler  v.  Silverstone,  516. 
Magee  v.  Lumber  Co.,  536,  543. 
Magee  v.   Scott,  332 
Magee  v.   Welsh,  197. 
Magill  V.  Stoddard,  492. 
Magoon  v.  Reber,  299. 
Maguire  v.  Eichmeier,  605. 
Maguire  v.  Smock,  362. 
Mahana  v.  Blunt,  117. 
Mahler  v    Newbaur,  555. 
Main   St.  &  A.  P.   R.   Co.  v.  Traction 

Co.,  159. 
Maine  v.  Railroad  Co.,  403. 
Majestic,  The,  24. 
Makin  v.   Watkinson,  578. 
Malcomson   v.   Wappoo   Mills,   594. 
-Mallan  v.  May,  72.  504. 
Mallon  V.  May,  409. 
Mallory   v.    Gillett,   85,  87. 
Mallory  v.  Leach,  275. 
Mallory'g  Adm'rs  v.  Mallory's  Adm'r,  90. 
Malone  v.  Philadelphia,  517. 
Malone  v.  Railroad  Corp.,  25. 
Maloney  v.   Nelson,   427. 
Maloy  V.  Boyett,  118. 
Maltby  v.   Austin,   512. 
Manby  v   Scott,  236. 
Manchester  Paper  Co.  v.  Moore,  494. 
Manchester  &  L.  R.  Co.  v.  Railroad  Co., 

243. 
Mandeville  v,  Harman,  390,  391. 
Mandeville  v.  Welch,  460,  461.    ^ 


700 


CASES   CITED 
[The  fl^urea  refer  to  pages] 


Mandlebaum  t.  Gregovich,  323. 

Maness  v.  Henry,  525. 

Mangles  v.  Dixon,  463. 

Manhattan  Oil  Co.  v.  Lubricating  Co., 
149. 

Mankey  v.  Hoyt,  547. 

Mann  v.  Farnum,  23. 

Mann  v.  Mann,  92. 

Mann  v.   Sprout,   553. 

Manning  v.  Johnson,  190,  215,  221,  223. 

Manning  v.  Riley,  90. 

Manning  v.  Sprague,  374. 

Manor  v.  I'yne,  19. 

Manry  v.  Waxelbaum  Co.,  30. 

Mansfield  v.  Gordon,  202,  203. 

Mansfield  v.  Hodgdon,  41. 

Mansfield  v.  Inhabitants,  499. 

Mansfield  v.   Sherman,  614. 

Mansfield  v.  Watson,  234,  235. 

Mansfield  v.  Wilson,  294. 

Mansfield  &  S.  C.  R.  Co.  v.  Veeder,  603. 

Manson  v.  Dayton,  507. 

Manter  v.  Churchill,  152. 

Manuel  v,  Wulff   182. 

Manufacturers'  Bank  v.  Follett,  601. 

Many  v.  Iron  Co.,  499. 

Maples  V.  Wightman,  190. 

Marble  v.  Oil  Co.,  54. 

Marble  Sav.  Bank  v.  Mesarvey,  448, 
450. 

March  v.  Ward,  520. 

Marchant  v    Hayes,  540. 

Marcy  v.  Marcy,  100. 

Marden  v,   Champlin,  103. 

Maricle  v.  Brooks,  299. 

Marie  v.  Garrison,  319. 

Mark's  Adm'r  v.  Boardman,  21. 

Markland  Min.  &  Mfg.  Co.  v.  Kimmel, 
509. 

Markle  v.  Hatfield,  545. 

Marquis  v.  Lauretson,  491. 

Marr  v.  Shaw,  46. 

Marriner  v.   Dennison,  290,  491. 

Marryat  v.  Marryat,  71. 

Marschall  v.   Eisen  Vineyard  Co.,  85. 

Marschall  v.  Vineyard  Co.,  103. 

Marsh  v.   Chown,  170. 

Marsh   v.  Falker,  285. 

Marsh  v,  Garnev,  4G2. 

Marsh  v.  Gold,  412. 

Marsh  v.  Griffin,  601. 

Marsh  v.  Hyde,  127.  130. 

Marsh  v.  Keating,  634. 

Marsh  v.  McPherson,  585. 

Marsh  v.  Rainsford,  171. 

Marsh  v.  Rouse,  128. 

Marsh  v.  Russell,  396. 

Marsh  v.   Webber,   277. 

Marshall  v.  Ferguson,  94. 

Marshall   t.    Gougler,   603. 

Marshall   v.   Green,   94. 

Marshall  v.  Lynn,   79. 

Marshall  v.  Marshall.  224. 

Marshall  v.  Perry,  498,  499.  581. 

Marshall  v.  Railroad  Co.,  355. 

Marshall  v.   Rice,   334. 

Marshall  v.  Rutton,   236. 

Marshalltown  Stone  Co.  v.  Manufactur- 
ing Co.,  134,  151. 


Marston  v.  Bigelow.  448. 

Marston  v.  Insurance  Co.,  488. 

Martendale    v.    Follett,   602. 

^lartin   v.   Amos,   372. 

Martin   v.    Batchelder,   98. 

Martin  v.  Black,  153. 

IMartin  v.  Crump,  479. 

Martin  v.  Deetz,  611. 

Martin  v.  Drinan,  471. 

INIartin  v.   Dwelly,  2.36,   238, 

Martin  v.  Flaharty,  68. 

Martin  v.  Fuel  Co.    36. 

Martin  v.   Hall,  498. 

Martin  v    Hamlin,  599. 

Martin   v.    Hewson,   420. 

Martin  v.  Hudson,  39. 

Martin  v.   Hunt,  596. 

Martin  v.  Insurance  Co.,  604. 

Martin  v.   McCormick,  257. 

Martin  v.  Maynard,  498. 

iMartin  v.  Murphy,  391. 

Martin  v.   Nixon,  151. 

Martin   v.  Richardson,  403. 

Martin  t.  Royster,  351. 

Martin  v.  Shoenberger,  573. 

Martin  v.  Smith,  246,  493. 

Martin  v.  Thomas,  603. 

-Martin  v.  Veeder,  373. 

Martin  v.  Wade,  352. 

Martindale  v.  Smith,  514. 

IMartine  v.  Insurance   Soc,  597. 

Martin  Emerich  Outfitting  Co.  v.  SiegeL 
Cooper  &  Co.,  596. 

Martinsburg  &  P.  R.  Co.  v.  March.  577. 

Martus  v.  Houck,  648. 

Marvel  v.  Phillips,  474,  590. 

Marvin  v.   Inglis,  227. 

Marvin  v.  Marvin,  301. 

•Marvin  v.  Treat,  49. 

Marx  v.  McGlynn,  309. 

Maryland  Coal  Co.  v.  Railroad  Co..  503. 

Maryland  Fertilizing  &  Mfg.  Co.  t. 
Lorentz,  583. 

Mascolo  V.  Montesanto,  154,  301. 

Maslin's  Ex'rs  v.  Hiett.  47S. 

Mason  v.   Campbell.  163,  171,  616. 

Mason  v.  Douglas,  547. 

Mason  v.   Eldred,  477,  617. 

Mason  v.  Hall,  448. 

Mason  v.  McLeod,  429. 

^lason  V.   Prendergast,  636. 

Mason  v.  Small,  107. 

Mason  v.  Wright,  186,  196. 

Massachusetts  General  Hospital  v.  Fair- 
banks. 19,  227. 

Massachusetts  Loan  &  Trust  Co.  v. 
Welch,  464. 

.Massey  v.  Wallace,  376,  377,  408. 

Masson  v.  Bo  vet,  293,  295. 

Master   v.   Miller,   457.   601. 

Master  Stevedores'  Ass'n  v.  Walsh,  399. 

Masterson  v.  Howard,  182. 

Mastin  v.  Marlow,  31:^. 

Masury  v.  Southwortb,  468,  469,  470, 
471. 

Materne  v.  Horwitz,  317. 

Mathews   v.  Cowan,   220. 

Mathews  v.   Toogood,   337, 

Ma  this  V.  Thomas,  554. 


CASES  CITED 
[The  figures  refer  to  pages] 


701 


MatsoD   T.   Blossom,  341. 

Matson  v.  Wharam,  82. 

Matteson  v.  Ellsworth,  605. 

Matteson  v.  Holt,  581. 

Mattheissen  &  Weichers  Refining  Co.  T. 

McMahon's  Adm'r,  230. 
Matthews  v.  Baxter,  234,  235. 
^Matthews  v.  Bliss,  275. 
Matthews  v.  Coe,  338. 
Matthews  v.  Milton,  82,  84. 
Matthews  v.  Paine,  433. 
Mattingly  v.  Lewisohn,  618. 
Mattock  V.  Kinglake,  566,  567. 
Mattock  V.  Reppy,  294. 
Matzger  v.  Page,  555. 
Mauldln  v.  Southern  Shorthand  &  Busi- 
ness University,  194. 
Maurer  v.  Midway,  477. 
Maurin  v.   Fogelberg,   84. 
Maxfield  v.   Schwartz,   247. 
Maxfield  v.   West,   116. 
Maxwell  v.  Allen,  516. 
Maxwell  v.  Brown.  127. 
Maxwell  v.   Day,  530. 
;\Iaxwell  V.   Griswold,   302. 
.Maxwell  v.  Lee,  585. 
May  V.  Crawford.  516. 
May  V.  Flint,  339. 
May  V.  Ward,  105. 
May  V.  Williams,  89. 
Mayer  v.  New  York,  637. 
Maynard  v.  Hill,  9. 
Maynard  v.  Maynard,  277. 
Maynard  v.  Polhemus,  471. 
Maynard  v.  Tabor,   37. 
Mayo's  Ex'r   v.   Carrington's  Ex'r,   312. 
Mayor  v.  Schaub  Bros.,  571. 
Mayor,    etc.,    of    Alexandria    v.    Patten, 

549. 
Mayor,    etc.,    of    Allegheny    v.   Railroad 

Co.,  509. 
Mayor,    etc.,    of   City   of   New    York  v. 

Railroad  Co.,  509. 
Mays  V.  Williams,  437. 
Mazureau  &  Hennis  v.  Morgan,  375. 
^leacham  v.  Dow,  352. 
Meacham  v.  Meacham,  92. 
Mead  v.  Bunn,  284. 
Mead  v.   Hughes'  Adm'r,  238. 
Mead  v.  Parker,  107. 
Mead  v.   Watson,  82,  84. 
Meade  v.   Lamarche,  437. 
Meadow  v.  Bird,  422. 
Meadows  v.  Meadows,  112. 
Mease  v.  Wagner,  83. 
Mechanical    Boiler-Cleaner   Co.  v.   Kell- 

ner,   123,  125. 
Mechanics'    &    Traders'    Nat.    Bank    v. 

Crow,  421. 
Mecorney  v.  Stanley,  152. 
Medbury  v.   Watrous,   219,  651. 
Medbury  v.  Watson.  282. 
Medrano  v.   State,  301. 
Meech  v.  Buffalo,  159. 
Meech  v.  Lee,  304,  306. 
Meehan  v.  Sharp,  126. 
Meehon  v.   Sharp,   128. 
.Meek  t.  Atkinson,  301. 
Meekina  v.  Newberry,  491. 


Meguire  v.  Gorwine,  352.  357. 

Mehan  v.  Thompson,  547. 

Mehlhop  v.  Rae,  202,  207. 

Meigs  V.  Dexter,  67. 

Melcher  v.  Flanders,  486. 

Melchers   v.    Springs,    26. 

Melchoir  v.  McCarty,  327,  333. 

Hellish  V.  Robertson,  256, 

Mellon  V.  Davison,  107. 

Melroy  v.  Kemmerer,  IGl,  162. 

Memphis  v.   Bethel,   336. 

Memphis  &  C.  R.  Co.  v.  Reeves,  537. 

Menage  v.  Rosenthal,  500,  510. 

Mendenhall  v.  Davis,  598. 

Menkins  v.  Lightner,  224. 

Mentz  V.  Insurance  Co.,  368. 

Mentz  V.  Newwitter,  104. 

Merchant  v.  O'Rourke,  26,  142. 

Merchants'  Bank  v.  Rawls,  631. 

Merchants'  Bank  of  Baltimore  v.  Camp- 
bell, 275. 

Merchants'  Bank  of  Buffalo  v.  Weill, 
464. 

Merchants'  Ins.  Co.  v.  Prince,  499. 

Merchants'  Union  Trust  Co.  v.  New 
Philadelphia   Graphite  Co.,  449. 

Merchants'  &  Farmers'  Nat.  Bank  v. 
.McElwee,  490. 

Merck  v.  Mortgage  Co.,  337,  338. 

Meredith  v.  Crawford,  219. 

Meriden  Brittania  Co.  v.   Zingsen,  85. 

Meriwether  v.    Smith,  331. 

Meroney  v.  Association,  433. 

Merriam  v.  Cunningham,  194,  196,  198» 
221. 

Merriam  v.  Lumber  Co.,  448. 

Merriam  v.  U.   S.,  493. 

Merriam  v.  Wolcott,  587. 

Merrick  v.  Giddings,  160. 

Merrick  v.   Wiltse.   581. 

Merrill  v.  Downs,  331. 

.Merrill  v.  Packer,  341. 

Merrill  v.  Peaslee,  383. 

xMerrill  v.  Wilson,  294. 

Merritt  v.  Bucknam,  318. 

Merritt  v.   Gumaer,  224. 

Merryfield   v.   Willson,  641. 

Merryweather  v.  Nixan,  628. 

Mers  V.  Insurance  Co.,  149. 

Mersereau  v.  Lewis,  86. 

Mersey  Steel  &  Iron  Co.  v.  Naylor,  514, 
571. 

ISIersman  v.  Werges,  600,  603. 

Merwin  v.  Arbuckle,  286. 

Messer.    v.   The  Fadettes,   317. 

Messmore  v.  Cunningham,  105,  117. 

Metcalf  V.  Kincaid,  460. 

Methven  v.  Power  Co.,  465. 

Metropolitan   Ins.  Co.  v.  Bender,  70. 

Mette  v.  Feltgen,  218. 

INIettel  V.  Gales,  533. 

Meux  V.  Bell,  463. 

Mewburn's   Heirs  v.  Bass,   120. 

Meyer  v.  Dremer,  499. 

Meyer  v.  Estes,  476. 

.Meyer  v.  Hartman,  86. 

Meyer  v.  Haworth,  237. 

Meyer  v.   Howarth.   175. 

Meyer  v.  Huneke,  605. 


702 


CASES   CITED 
[Tbe  figures  refer  to  pages] 


Meyer  t.  Muscatine,  338. 

Mejer  v,  Richards,  587. 

Meyers  v.  Hockenbury,  151. 

Michael  v.  Bacon,  416. 

Michals  v,  Godts,  5S0. 

Michigan   Bolt  &  Nut   Works  v.   Steel, 

36,  149. 
Michigan  Cent.  R.  v.  Manufacturing  Co., 

25. 
Michigan  Cent.  R.  Co.  v.  Coleman,  497. 
Michigan    S.    &    N.    I.    R.    Co.    v.    Mc- 

Donough,  537. 
Middlebury  College  v.  Chandler,  194. 
Middlesex    Water    Co.    v.    Knappmann 

Whiting  Co.,  591. 
Middleton  v.  Hoge,  209. 
Mighell  V.  Dougherty,  125. 
Mihills  Mfg.  Co.  v.  Day,  610. 
Milberry   v.    Storer,   60.5. 
Miles  V.  Association,  374,  375. 
Miles  T.  Iron  Co.,  144. 
Miles  V.  Lingerman,  219. 
Miles  V.  New  Zealand,   etc.,   Co.,  156. 
Miles  V.  Schmidt,  3GS. 
Miles  V.  Stevens.  254. 
Miles   Medical   Co.   v.  John   D.   Park  & 

Sons  Co.,  398. 
Milks  V.  Rich,  87. 
Millard  v.  Barton,  249. 
Millard  v.  Hewlett,  219. 
Mill-Dam  Foundry  v.   Hovey,  583. 
Miller  v.  Ammon,  321. 
MiUer  v.  Baker,  94. 
iMiiler  v.  Ball,  117,  118. 
Miller  V.   Bryden,  301. 
Miller  v.  Covert,  617. 
Miller  v.  Craig,  255.  ' 

Miller  v.  D.-uville,  39. 
Miller  v.  Edserton,  488. 
Miller  v.  Eldredge,  119. 
MiUer  v.  Elliott,  391. 
Miller  v.  Finley,  233.  235,  603. 
Miller  v.   Fletcher,  68. 
Miller  v.  Gilleland,  602. 
Miller  v.  Goddard,  579. 
Miller  v.  Hirschberg,  412. 
Miller  v.  Irvine,  106. 
Miller  v.  Jones,  614. 
Miller  v.  Kendig,  55. 
Miller  v.  Lynch,  85. 
Miller  v.  Maguire,  594. 
Miller  v.   Marckle.  424. 
Miller  v.  Miller,  298,  302,  384,  551,  632 
Miller  v.  Minor,  305. 
Miller  v.  Moore,  497. 
Miller  v.  Post,  322,  325. 
Miller  v.  Reed,  601. 
Miller  v.  Simonds,  310. 
Miller  v.   Sims,  201,  202. 
Miller  v.  Smith,  195.  215. 
Miller  v.   Sterringer.  311. 
Miller  v.   Sutlifif,   280. 
Miller  v.  Wilson,   121. 
Millerd  t.  Thorn,  530. 
Milliken  v.   Barrow,   182, 
Million  V.  Ohnsorg,  373. 
Mills  V.  Bank.  498. 
Mills  V.  Guardians  of  the  Poor.  637. 
MiUs  T.   MUls,   355. 


Mills  V.  Williams,  329. 

Mills  V.  Wyman,  136,  171,  173,  17b. 

Mills  Pub.  Co.  V.  Larrabee,  180. 

.Millsaps  V.   Bank,  527. 

•Miln  V.  Patty,  548. 

Milnes  V.  Duncan,  637. 

-Milroy  v.  Iron  Co.,  460. 

Milwaukee  Masons'  &  Builders'  Ass'n  t. 

Niezerowski,  395,  400. 
Milwaukee  &  M.  R.  Co.  v.  Railroad  Co., 

374. 
Minard  v.  Mead,  105. 
Minder  &  Jorgenson  Land  Co.  v.  Brus- 

tuen,  529. 
Miner  v.  Lorman,  621. 
Ming  V.  Corbin,  568. 
Ming  V.  Woolfolk,  289. 
Minis  V.  Nelson,  497,  499. 
Minneapolis  Land  Co.  v.  McMillan,  140. 
Mianeapolis  &  St    L.  Ry.  Co.  v.    Mill 

Co.,  35. 
Minneapolis  &  St.  L.  Ry.  Co.  v.  Rolling- 

Mill  Co.,  30,  45. 
Minnesota    Linseed    Oil    Co.    v.    Collier 

White  Lead  Co.,  45. 
Minnesota  Linseed  Oil  Co.  v.  Lead  Co., 

31,  33,  38,  39. 
Minnesota  Lumber  Co.  v.  Coal  Co.,  56, 

149. 
Minnesota  Sandstone  Co.  v.  Clark,  409. 
Minock  v.  Shortridge,  191,  200,  202,  218. 
Minor  v.   Sharon,  277. 
Minshull  v.  Oakes.  469. 
Minzesheimer  v.  Doolittle,  424. 
Miskey's  Appeal,  307. 
Misner  v.  Knapp,  343. 
Missisquoi  Bank  v.  Sabin,  146. 
Mississippi  &  D.  S.  S.  Co.  v.  Swift.  53. 
Mississippi  &  T.  R.  Co.  v.  Green,  593. 
Missouri  Pac.  Ry.  Co.  v.  Railway  Co.. 

25. 
Mitchell  V.  Abbott,  48. 
Mitchell  V.  Beck,  86. 
Mitchell  V.   Branham,   377. 
Mitchell  V.  Dougherty,  368,  369. 
Mitchell  V.   Hawley,  614. 
Mitchell  V.  Homfray,  310. 
MitcheU  v.  Kingman,  223. 
Mitchell  v.  McDougall.  268,  276. 
Mitchell  V.  Merrill,  552. 
Mitchell  V.  Railton,  250. 
Mitchel  V.  Reynolds,  386. 
Mitchell  V.  Scott,  328. 
.Mitchell  V.  Vance,  353. 
Mitchell  V.  Wedderburn,  510. 
Mitchell  &  Pumphrey  v.  Caplinger,  540. 
Mitchell's  Lessee  v.   Ryan,  66,  67. 
]Mitchinson  v.  Hewson,  187. 
Mittenthal  v.  Mascagni,  368. 
Mitts  v.  McMorran,  85. 
Mixer  v.  Howarth,  125. 
Mixer  v.  Sibley,  183. 
Moale  V.  Hollins,  599. 
Mobberlv  v.  Mobberly,  493. 
Mobile  Sav.  Bank  v.  McDonnell,  488. 
.Mobile  &  M.  R.  Co.  v.  Jurey,  492,  505. 
Mobray  v.  Leckie,  518. 
Moffet,  H.  &  C.  Co.  V.  Rochester,  501. 


CASES   CITED 
[The  figures  refer  to  pages] 


703 


Moffett,     Hodffkins     &     Clarke     Co.     v. 
Rochester,  278. 

Mohler  v.  Carder,  268. 

Mohney  v.   Evajis,  109. 

Mohr  V    Miosen,  345,  346,  421,  431. 

Mohr  V.  Tulip,  228. 

Muley  V.  Brine,  192. 

Moline-Milburn  Co.  v.  Franklin,  290. 

Moloney  v.  Nelson,  305,  427. 

Moloney  v.  Same,  427. 

Moiton  V.  Camroux,  230. 

Monarch   Cycle  Mfg.  Co.   v.   Wheel   Co., 
514,  572. 

Moncrieff  v.   Goldsborough,  318. 

Mondel   v.   Steel,   587. 

Monmouth    Park  Ass'n  v.   Iron   Works, 
506,  516. 

Monmouth   Park  Ass'n  v.   Warren,  518. 

Monroe  v.  The  Iowa.  403. 

Montag  V.   Linn,   601. 

Montague  v.  Garnett,  100,  114,  650. 

Montana  Min.  Co.  v.  Milling  Co.,  521. 

Montclair  Military  Academy  v.  Railway 
Co.,  363. 

Montgomery  v.  Downey,  172. 

Montgomery  v.  Edwards,  114,  120. 

Montgomery  v.  Lampton,  171. 

Montgomery  v.  Rief,  449. 

Montgomery  v.  Waterworks  Co.,  623. 

Montgomery  County  v.   Robinson,   47. 

Montgomery   R.   Co.  v.  Hurst,  603. 

Montreal    Lumber   Co.    v.    Mihills,    279, 
286. 

Monumental    Bldg.    Ass'n    v.    Herman, 
198. 

Moody  V.  Blake,  250.  292. 

Moody  V.  Walker,  632. 

Moody   V.   Wright,  400. 
Mooney  v.  Davis,  287. 

Mooney  v.  Iron  Co.,  586,  648. 
Mooney  v.   Miller,   270. 

Moore  v.  Association,  294. 
Moore   v.   Bevier,   479. 

Moore    v.    Camden    Marble    &    Granite 

Works,  125. 
Moore  v.  Campbell,  534. 
Moore  v.  Cross,  280. 
Moore  v.  Earl,  70. 
Moore  v.  Elmer,  170,  172. 
Moore  v.  Flynn,  67. 
Moore  v.  Garwood,  641. 
Moore  v.  Giles,  66. 
Moore  v.  Hershey.  231. 
Moore  v.  Ivers,  604. 
Moore  v.  Kiff,  550. 
Moore  v.  Locomotive  Works,  160,  525. 
Moore  v.  McKennev,  152. 
Moore  v.  Moore,  296.  311,  312. 
Moore  v.  Norman,  555. 
Moore  v.  Pierson,  31,  44. 
Moore  v.  Powell,  110. 
Moore  v.  Redding,  157. 
Moore  v.  Small,  118. 
Moore  v.  Tanning  Co.,  243. 
Moote  V,   Scriven,  512. 
Moran  v.  Peace,  160. 
Mordecai  v.  Dawkins,  417. 
.Mordecai  v.  Pearl,  21.5. 
More  V.  Bennett,  399. 


More  v.  Bonnet,  388,  409. 

Morehouse  v.   Bank,   616. 

Morehouse  v.  Comstock,  588. 

Morel  V.  Hoge,  379. 

Moreland  v.  Atchison,  281. 

Morford  v.  White,  647. 

Morgan  v.  Andrews,  441. 

Morgan  v.  Bell,  256. 

Morgan  v.  Birnie,  577. 

Morgan  v.   Gamble,   540. 

^Morgan  v,  Owens,  276. 

Morgan  v,  Randolph  &  Clowes  Co.,  446. 

Morley  v.  Attenborough,  642. 

Alorley  v.  Lake  Shore  &  M.  S.   R.   Co., 
01,  624. 

Morrell  v.  Cowan,  30. 

Morrell  v.   Quarles,  47,  353. 

Morrill  v.  Aden,  210. 

Morrill  v.  Blackman,  274. 

Morrill  v.  Everson,  144. 

Morrill  v.  Nightingale,  301. 

Morris  v.   Brightman,  52. 

Morris  v.  Gaines,  86. 

IMorris  v.   Henderson,  372. 

Morris  v.  Manufacturing  Co.,  387. 

Morris  v.  Norfolk,  236. 

Morris  v.  Norton,  137. 
Morris  v.  Osterhout.  83. 

Morris  v.  Tarin,  635. 

IMorris  v.  Thompson,  277. 

Morris  v.  Western  Union  Tel.  Co.,  345. 

Morris  Run  Coal  Co.  v.  Coal  Co.,  394. 

Morrisey  V.  Perry,  188. 

Morrison  v.  American  Surety  Co.,  520. 

Morrison  v.  Bennett,  424. 

Morrison  v.  Dailey,  106. 

Morrison  v.  Davis,  537. 

Morrison  v.  Faulkner.  299,  301. 

Morrison  v.  Garth,  601. 

Morrison  y.  Herrick,  117. 

Morrison  v.  Kendall,  529. 

Morrison  v.   Rogers,  381. 

Morrison  v.  Smith,  548. 

IMorriss  v.  Harveys,  547. 

Morrissey  v.   Broomal,  537. 

Morrow  v.  Express  Co.,  149. 

Morse  v.  Bellows,  18,  47. 

Morse  v.  Brackett,  295. 

Morse  t.  Crate,  174. 

Morse  v.  Ely,  216. 

Morse  v.  Moore,  580,  585. 

Morse  v.   Rathburn,  516. 

Morse  v.  Ryan,  352. 

Morse  v.   Tappan,   624,  626. 

Morse  t.  Wheeler,  208. 

Morse  v.  Woodworth,  298,  301. 

Morse    Twist    Drill    &    Mach.     Co. 

Morse,  398. 
Morss  V.  Salisbury,  504. 
Mortland  v.   Mortland,  73. 
Morton  v.  Burn,  457. 
Morton  v.  Dean,  110,  112. 
Morton  v.  Lamb,  506,  576,  578. 
Morton  v.  Nelson,  93. 
Morton  v.  Scull.  286. 
Morton   v.    Steward,  199. 
Morton  v.  Thurber,   3:58. 
Morton's  Adm'r  v.   Morton,   311. 
Morville  v.  Society,  242. 


T04 


CASES  CITED 
(Th«  figures  refer  to  pages] 


Mory  ▼.  Michael,  446. 

Moseley  v.  Bosh,  457, 

-Moseley  v.  Vanhooser,  33L 

Moses  V.  Arnold,   631. 

Mosea  t.  Bank,  109. 

.Moses  V.  McClain,  149. 

.Moses  V.   Macferlan,  635. 

Moses  V.  Stevens,  219. 

.Moss  V.  Attinson,  103. 

Motherwav    v.    Wall,   256,   28L 

Mott  V.   Hicks,   241. 

Mott  V.  Jackson,  28. 

.Mott  V.  Mott,  228. 

Mott  V.  Oppenheimer,  47L 

Mott  V.  Rowland,  433. 

Motz  V.  Mitchell,  302. 

Moulton  V.  Harris,  117. 

Moulton  V.  Kershaw,  51,  52. 

Mound  V.  Barker,  414. 

Mount  V.  Scholes,  G19. 

Mount  V.   Waite,  428. 

Mountstephen  v.  Brooke,  477. 

Mountstephen   v.   Lakeman,  82,  S3. 

Mowatt  V.  Wright,  638. 

Moxon  V.  Payne,  313. 

Moyer  v.  Cantieny,  356,  357. 

Moyer  v.  Dodson,  366. 

Muckenburg  v.  Holler,  382. 

Mudgett  V.  Clay,  117. 

Mueller     v.     Northwestern     University, 

459. 
Muir  V.  Schenck,  462,  465. 
Mulford  V.  Bowen,  342. 
Mulgrew  v.  Cocharen,  529. 
Mulhall  V.  Quinn,  458,  459. 
Mulholland  v.  Bartlett,  155. 
Mullalieu  v.  Hodgson,  318. 
Muller  V.  Eno,  581. 
Muller  V.  Kelly,  246,  247. 
Mullin  V.  Leamy,  301,  304. 
Mulvany  v.  Gross,  86. 
Mulvey  v.   King,  268. 
Mumford   v.    Chicago,    R.    I.   &   P.    Ry. 

Co.,  349. 
Mumford  v.  Whitney,  95. 
Munday  v.   Whissenliunt,  373. 
Mungan  v.  French,  478. 
Munn  V.  Commission  Co.,  335. 
Munroe  v.  Perkins,  159,  526,  533. 
Munroe  t.  Pritchett,  268. 
Munson  v.   Straits  of  Dover  S.  S.  Co., 

368. 
Munson  t.  Washband,   193,   197. 
Murchie  v.  Cornell,  580. 
Murdoch  v.  Finney,  465. 
Murphy  v.  Crawford.  174,  175. 
Murphy  v.  English,  363. 
Murphy  v.  Jones,  588. 
Murphy  v.   Webber,   549. 
Murphy  v.  Weil,  477. 
Murray  y.   Brooks,  498. 
JNIurray  v.  FlaveU,  445. 
Murray  v.   Harway,   523. 
Murray  v.  Mumford,  479. 
Murray  v.  O'Brien,  .553. 
Murray  v.  Parker,  501. 
Murray  v.  Pillsbury,  510. 
Murray  v.   Snow,  166. 
Murray  t.  Wakefield,  356. 


Murto  V.  McKnight,  85. 
Musick  V.  Dodson,  175,  236. 
Musselman  v.  Cravens,  225. 
Musselman  v.  Stoner,  534. 
Musser  v.  Ferguson  Township,  136. 
Mustard  v.   Wohlford's  Heirs,  187,   190l 

211,  213,  214,  215,  218,  219,  222. 
Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard, 

182,  183.  * 

Mutual  Ben.  Life  Ins.  Co.  v.  Wise,  267. 
Mutual  Life  Ins.  Co.  v.  Hunt,  230. 
Mutual  Life  Ins.  Co.  v.  Watson,  462. 
Mut.  Life  Ins.  Co.  of  New  York  v.  Dur- 

den,  350. 
Mutual  Loan  Co.  v.  Martell,  459. 
Mutual    Reserve    Fund    Life    Ass'n    v, 

Taylor,  558. 
Mutual    Reserve    Fund    Life    Ass'n    v. 

Woolen  :Mills,  367. 
Mutual  Reserve  Life  Ins.  Co.  v.  Seidel, 

280. 
Mutual  Sav.  Inst.  v.  Enslin,  640. 
jNIyer  v.  Grafflin,  84. 
Myer  v.  Hart,  517, 
Myer  v.   Wheeler,  571. 
flyers  v,   Carnahan,  510,  527. 
Myers  v.  Jenkins,  369. 
Myers  v.  Knabe,  230. 
Myers  v.  Meinrath,  332,  424. 
Myers  v,  Munson,  487. 
Myers  v.  Nell,  605. 
Myers  v.   Smith,  629. 
Myers  v.  Tibbals,  496. 
Mygatt  V.  Coe,  471. 
Mygatt  V.  Tarbell,  35,  91,  15L 
Myrick  v.  Dame,  479. 

N 

Nagle  V,  McMurray,  23. 

Nalle  V.  Paggl,  471. 

Naily  V.  Reading,  115. 

Napier  v.   McLeod,   479. 

Nash  V,  Armstrong,  154,  532. 

Nash  V,  Jewett,  221. 

Nash  V.  Lull,  140,  587. 

Nash  V.  Skinner,  476,  477. 

Nash  V.  Towne,  505. 

Nash  V,  Trust  Co.,  279,  288. 

Nashua  &  L.  R.  Corp.  v.  Railroad  Corp., 
243. 

Nashville  &  C.  R.  Co,  v.  David,  537. 

Nassoiy  y,  Tomlinson,  164,  545,  616, 
617, 

National  Bank  v,  Berrall,  639, 

National  Bank  of  Athens  v,  Danforth, 
338 

National  Bank  of  El  Paso  v.  Fink,  354. 

National  Ben.  Co.  v.  Hospital  Co.,  389. 

National  Contracting  Co.  v.  Water  Pow- 
er Co.,  369. 

National  Enameling  &  Stamping  Co,  v, 
Haberman,  389. 

National  Exch,  Bank  v.  McLoon,  460, 

National  Harrow  Co,  v,  Hench,  398, 

National  Harrow  Co.  v.  Quick,  398, 

National  Life  Ins.  Co.  v.  Jones,  638. 

National  Park   Bank  v.  Levy,  &46, 

National  Refining  Co.  v.  Miller,  40. 


CASES   CITED 
[The  figures  refer  to  pases] 


705 


National  State  Bank  v.  Rising,  605. 
National  Trust  Co.  v.  Gleason,  633,  634. 
National   Union  Bank  at  Dover  v.  Se- 

gur,  471. 
Nauman  v.  Oberle,  291. 
Neal  V.  Allison,  550. 
Neal  V.  Finley,  554. 
Neal  V.  Reynolds,  295. 
Neal  V.  Saunderson,  537. 
Nealey  v.  Greenough,  301. 
Neate  v.  Harding,  633. 
Neblett  v.  Macfarland,  295. 
Nebraska  Mut.  Bond  Ass'n  v.  Klee,  299, 

304. 
Nebraska  &  Ins.  Co.  v.  Seivers,  77. 
Neece  v.  Joseph,  364. 
Needles  v.   Burk,   640. 
Needles  v.  Needles,  460. 
Needles  v.  Shaffer,  601. 
Nefif  V.  Horner,  601,  602,  604. 
Nefif  V.  Landis,  222,  296. 
Negley  v.  Jeffers,  80,  534. 
Neibert  v.  Baghurst,  116. 
NeibleB  v.  Railway  Co.,  154. 
Neidefer  v.  Chastain,  587. 
Neill   V.    Shamburg,   273. 
Neiswanger  v.  McClellan,  86. 
Nelson  v.  Beck,  326. 
Nelson  v.   Boynton,  S3,  85,  87. 
Nelson  Y.  Brush,  374. 
Nelson  v.  Improv.  Co.,  114,  119. 
Nelson  v.  Rogers,  450. 
Nelson  v.   Shelby  Manufg.  &  Imp.  Co., 

107,  650. 
Nelson  v.  State,  330. 
Nelson  v.  Suddarth,  302. 
Nelson  v.  Vassenden,  383. 
Nelson's  Will,  In  re,  306. 
Nerac's  Estate,  In  re,  184. 
Nester  v.  Brewing  Co.,  395, 
Nester  v.  Sullivan,  93. 
Neustadt  v.  Hall,  353. 
New  V.  Germania  Fire  Ins.  Co.,  32. 
Newbern  Banking  &  Trust  Co.  v.  Duffy, 

505,  506. 
Newberry  Land  Co.  v.  Newberry,  449. 
Newbi?ging  v.  Adam,  270,  27L 
New    Brunswick   &   C.   R.   Co.   t.  Mug- 

geridge,  269. 
Newburg  Petroleum  Co.  v.  Weare,  469. 
Newby  v.  HilL  465. 
Newcomb  v.  Brackett,  562,  663. 
Newcomb  v.  Clark,  105. 
Newcomb  v.  Raynor,  478. 
Newcomer  v.  Kline,  258. 
Newell  V.  Bank,  338. 
Newell  V.  Doty,  336. 
Neweli  V.  Fisher,  234. 
Newell  V.  March,  640. 
Newell  V.  Meyendorff.  387. 
Newell  V.  Radford,  104. 
Newell  V,  Randall,  275. 
New   England  Dressed  M.  &  W.  Co.  v. 

Standard  W.  Co.,  493. 
New  England  Mortgage  Security   Co.  v. 

Gay,   338,  4SS. 
New  England   Mortgage  Security  Co.  T. 

Townes.  339. 
Newhall  v.  Appleton,  495. 

Clabk  Cont.(3d  Ed.)— 45 


Xewhall  v,  Clark,  582. 

Newhall  v.  Wyatt,  636. 

Newhall   Engineering  Co.   v.   Daly,  564. 

New  Hampshire  Mut.  Fire  Ins.  Co.  v. 
Noyes,  197. 

New  Haven  &  N.  Co.  v.  Hayden,  520. 

New  London  Water  Com'rs  v.  Robbins, 
286. 

Newman  v.  Freitas,  383. 

Newman  v.  Reagan,  538. 

Newman  v.  Taylor,  232. 

Newport  News  &  M.  V.  Co.  v.  McDon- 
ald Brick  Co.'s  Assignee,  593. 

Newport  Rolling  Mill  Co.  v.  Hall,  374. 

Xewsome  v.  Graham,  641. 

Newsom  v.  Luster,  486. 

Newton  v.  Bronson,  114. 

Newton  v.  Tolles,  255. 

Newton  Mfg.  Co.   v.  White,  647. 

New  York  Bowery  Fire  Ins.  Co.  v.  In- 
surance Co.,  260. 

New  York  Building  Loan  Banking  Co. 
V.  Fisher,  221. 

New  York  Cent.  R.  Co.  v.  Lockwood, 
403. 

New  York  Guaranty  &  Indemnity  Co.  v. 
Gleason,  634. 

New  York  Guaranty  &, Indemnity  Co.  v. 
Water  Co.,  457. 

New  York  Life  Ins.  Co.  v.  Aitkin,  450. 

New   York  Life   Ins.  Co.  v.  Davis,  1S2. 

New  York  Life  Ins.  Co.  v.  Fletcher,  267. 

New  York  Life  Ins.  Co.  v.  Statham,  514. 

New  York  &  N.  H.  R.  Co.  v.  Pixley,  18. 

Niagara,  The,  v.  Cordes,  537. 

Niagara  Fire  Ins.  Co.  v.   Greene,  96. 

Nibert  v.  Baghurst,  116,  329. 

Nicholas  v.  Austin,  532. 

Nicholl  V.  United  States,  180. 

Nichols  V.  Fearson,  335. 

Nichols  V.  Johnson,  604. 

Nichols  V.  McCarthy,  308. 

Nichols  V.   McMichael,  274. 

Nichols  V.  Mudgett,   352.  363. 

Nichols  V.  Raynbred,  145,  146. 

Nichols  V.   Steel  Co.,   559. 

Nichols  V.  Weaver,  100. 

Nichols,  Shepard  &  Co.  v,  Burch,  488. 

Nichols  '&  Shepard  Co.  v.   Snyder,  214. 

Nichols  &  Shepard  Co.  v.  Soderquist, 
588. 

Nicholson  v.  Acme  Cement  Plaster  Co., 
17. 

Nicholson  v.  Combs,  601,  603. 

Nicholson  v.  Dover,  103. 

Nicholson  v.  Spencer,  105,  194,  198. 

Nicholson  v.  Wilborn,  18  (,  19o. 

Nickelson  v.  Wilson,  367. 

Nickerson  v.  Wheeler,  628. 

Nicol  V.  Fitch,  595. 

Niebuhr  v.  Schreyer,  335. 

Niemeyer  v.  Wright,  326. 

Niuhtingale  v.  Devisme,  631. 

Nightingale  v.  Eiseman,  569. 

Nightingale  v.  Withington,  191,  202. 

XiLson  V.  Morse,  558. 

Nispel  V.  Laparle,   618. 

Nixon  V.  Beard,  547. 

Noble  T.  Davison,  350. 


706 


CASES   CITED 
[The  flgurea  refer  to  pages] 


Noble  V.  Joseph  Burnett  Co.,  56. 

Noble  V.  Ward,  534. 

Nobles  V.  Bates,  388. 

Noble's  Adm'r  v.   Moses,  307,  310. 

Noel  V.  Karper,  225. 

Noel  V.  Murray,  547. 

Noetling  v.  Wright,  279. 

Noice  V.  Brown,  442. 

Nolan  V.  Whitney,  540. 

Nolte  V.  Hill,  499. 

Nonotuck  Silk  Co.  v.  Fair,  498. 

Noonan  v.  Bradley,  508. 

Nordenfelt  v.  Maxin-Nordenfelt  Co,,  389. 

Nordholt  v.  Nordholt,  189. 

Nordon  Steam  Co.  v.  Dempsey,  496. 

Nordyke  &  Marmon  Co.  v.  Kehlor,  252. 

Norfleet  t.  Cromwell,  468. 

Norman  v.  Cole,  356. 

Norman  v.  Trust  Co.,  225. 

Norman  v.  Wells,  468,  469. 

Norrington    v.    Wright,    261,    514,    571, 

580,  582. 
Norris  v.  Graham,  84. 
Norris  v.  Harris,  568. 
Norris  v.  Railway  Co.,  537. 
Norris  v.  School  Dist.,  648. 
Norris  v.  Tayloe,  269,  310. 
Norris  v.  Vance,  208,  221, 
Norris  v.  Vosburgh,  151. 
North    V.    Forest,   126. 
North  V.  Mallory,  561. 
North  V.  Mendel,  110. 
North  V.  Wakefield,  478. 
North  American  Ins.  Co.  v.  Throop,  267. 
North  British  Ins.  Co.  v.  Lloyd,  270. 
North  Carolina  v.  Temple,  ISO. 
North  Chicago  St.  R.  Co.  v.  Ackley,  373. 
Northern  v.  State,  94. 
Northern  Cent.   R.   Co.  v.  Prentiss,   84. 
Northern  Liberty  Market  Co.  v.   Kelly, 

165. 
Northern  Light  Lodge  v.  Kennedy,  510. 
Northern  Nat.  Bank  v.  Lewis,  493. 
Northern  Securities  Co.  v.  U.  S.,  395. 
North  Platte  Milling  &  Elevator  Co.  v. 

Price.   103. 
Northrop   v.   Hill,  290. 
Northrop's  Ex'rs  v.  Graves,  640. 
North rup  v.  Colter,  4,  54. 
Northrup  v.  Foot,  328. 
Northwestern    Fertilizing    Co,    v.    Hyde 

Park.  509. 
Northwestern    Ins.   Co.    v.   Blankenship, 

230. 
Northwestern  Iron   Co.  v.  Meade,  45. 
Northwestern  R.  Co.  v.  McMichael,  200. 
Northwestern  Union  Packet  Co.  v.  Shaw, 

643. 
Norton  v.  Brink,  93. 
Norton  v.   Coons,  628. 
Norton  v.  Doherty,  618. 
Norton  v.  Norton,  311. 
Norton  v.  Tuttle,  374. 
Norvell  v.  Walker,   65. 
Norwood  V.  Lathrop,  541. 
Notley  V.  Buck,  632. 
Nottingham,  etc.,  Soc.  v.  Thurston,  213, 

215. 
Nounnan  v.  Land  Co.,  281. 


Nourse   v.   Prime,  338. 

Nova  Cesarea  Harmony  Lodge  No.  2  t. 

White,  469. 
Nowack  V.  Berger,  143. 
Nowlan  v.  Cain,  284. 
Noyes  v.  Nichols,  505. 
Noyes  v.    Parker,   640. 
Noyes  v,  Wyckoff,  554,  555. 
Nugent  v.  Smith.  537. 
Nugent  V.  Teachout,  650. 
Nugent  V.  Wolfe,  83,  89. 
Nunez  v.   Morgan,  120. 
Nutter  V.  Des  Moines  Life  Ins.  Co.,  232. 

o 

Oakdale  Mfg.  Co.  v.  Garst,  389,  397. 

Oakes  v.   Merrifield,  408. 

Oakes  v.  Water  Co.,  388. 

Oakey  v.  Ritchie,  311. 

Oakland  Bank  of  Savings  v.  Applegarth, 
554. 

Oatfield  T.  Waring,  171. 

Oatman  v.  Walker,  555. 

Obermyer  v.  Nichols,  560. 

O'Brien  v.  Bolond,  41. 

O'Brien  v.  Bound,  476. 

O'Brien  v.  Brietenbach,  418. 

O'Brien  v.  Young,  60,  624.  626. 

O'Bryan  v.  Fitzpatrick,  327. 

O' Byrne  v.  Henley,  594. 

Ocala  Cooperage  Co.  v.  Florida  Cooper- 
age Co.,  53. 

O'Conley  v.  Natchez,  631,  633. 

Odum  V.  Clark,  123. 

Odum  V.  Riddick,  233. 

ODonnell  v.  Brand,  523. 

O'Donnell  v.  Leeman,  105,  110. 

O'Donohue  v.  Leggett,  500. 

Odum  V.  Railroad  Co.,  555. 

Oelrichs  v.  Artz.  552. 

Oelricks  v.  Ford,  497. 

O'Fallon  v.  Boismenu,  631. 

Offord  V.  Davies,  39. 

Offutt  V.  King,  549. 

Ogborn  v.  Hotfman.  164,  165. 

Ogden  v.  Kirby,  5S2. 

Ogden  V.  Ogden,  90. 

Ogilvie  V.  Hallam,  615. 

Ogle  V.  Earl  Vane,  528. 

O'Hara  v.  Carpenter,  356. 

Ohio  Life  Ins.  &  Trust  Co.  v.  Ross, 
465. 

Ohio  &  M,  R.  Co.  V.  Trapp,  114. 

Oblendorff  v.  Kanne,  142. 

Oisher  v.  Lazzarone.  371. 

O'Keefe  v.  Allen,  459. 

O' Kelly  v.  Faulkner,  22. 

Old  Colony  R.  Co.  v.  Evans,  111. 

Old  Colony  Trust  Co.  v.  Traction  Co., 
280. 

Old  Dominion  S.  S.  Co.  v.  McKenna, 
400. 

Oldershaw  v.  King,  152. 

Oleson  V.  Merrihew,  619. 

Oliphant  v.  Markham,  302. 

Olive  V.  Olive,  632. 

Oliver  v.  Cunningham,  313. 

Oliver  v.  Holt,  617. 


CASES   CITED 
[The  figures  refer  to  pages] 


707 


Oliver  v.   Houdlet,  202. 

Oliver  v.  Hunting,  107. 

Oliver  v.  Insurance  Co.,  110,  111- 

Olmstead  v.   Bailey,  510. 

Olmstead  v.  Beale,  579. 

Olmstead  v.  Latimer,  157. 

Olson  v.  Sharpless,  109. 

Olston   V.   Oregon   Water  Power  &   Ry. 

Co.,  292. 
Olt  V.  Lohna&,  100. 
Olympia     Bottling     Works    v.    Olympia 

Brev?ing  Co.,  507. 
Omaha  Loan  &  Trust  Co.  v.  Goodman, 

39. 
O'Mealey  v.  Wilson,  182. 
O.  N.  Bull  Remedy  Co.  v.  Clark,  602. 
O'Neal  V.   Board,  447. 
O'Neal  V.  Hines,   300. 
O'Neal  V.  Knippa,  19. 
Oneida  Bank  v.  Bank.  430. 
O'Neil  V.  Armstrong,  593. 
O'Neil  V.  Crain,  lOl 
O'Neill  V.   Armstrong,  563. 
O'Neill  V.  Clark,  450. 
O'Neill  V.   Supreme  Council,  558. 
Onion  v.  Paul,  457. 
Opinion  of  Justices,  356. 
Orcutt  V.  Nelson,  414. 
Ordeman  v.  Lawson,  108. 
O'Reagan  v.  Steamship  Co.,  432,  435. 
Oregon  Pac.  R.  Co.  v.  Forrest,  305. 
Oregon  Steam  Nav.  Co.  v.  Winsor,  388 
Oregon  &  W.  Mortg.  Sav.  Bank  v.  Mort- 
gage Co.,  538. 
Oregonian  Rv.  Co.  v.  Navigation  Co.,  bl. 

O'Reilly  v.  Cleary,  356. 

O'Reilly  v.  Railroad  Co.,  618. 

Ormerod  v.   Dearman,  356. 

Ormes  v.   Dauchy,  508. 

Ormsbee  v.  Howe,  297. 

Ormsby  v.  Rhoades,  20. 

Orne  v.  Cook,  110. 

O'liorke  v.  Boliugbroke,  312. 

O'Rourk  V.  Percival,  268. 

O'Rourke  v.  Insurance  Co.,  212,  220. 

O'Rourke   v.   John    Hancock    Mut.    Life 
Ins.  Co.,  203. 

O'Rourke  v.  O'Rourke,  433. 

Orr  V.  Meek,  325. 

Orr  V.  Mortgage  Co.,  229,  231. 

Ort  V.  Fowler,  249. 

Ortman  v.  Weaver,  38. 

Osage  City  Bank  v.  Jones,  61. 

Osborn  v.  Farwell,  507. 

Osborn  v.  McCowen,  334. 

Osborn  v.   Martha's   Vineyard   R.,   4(9. 

Osborn  v.  Bobbins    300. 

Osborne  v.  Kimball,  99,  115. 

Osborne  v.  O'Reilly,  100. 

Osborne  v.  Taylor,  491. 

Osborne  &  Co.  v.  Baker,  108. 

Osbum  v.  Throckmorton,  256,  640. 

Oscanyan  v.  Arms  Co.,  $56,  357,  434. 

Osgood  V.  Bauder,  493. 

Osgood  V.  Central  Vermont  R.  Co.,  409. 

Osgood  V.  Stevenson,  001. 

Osgood's  Adm'rs  v.  Artt,  467. 

O'.Shea  v.  Oil  Co.,  318. 

Osier  v.  Hobbs,  136,  171,  172. 


Ostrander  v.    Scott,   164. 

O'Sullivan  v.  Overton,  104. 

Oswald  V.  Fratenburgh,  469. 

Oswego  Starch  Factory  v.  Lendrum,  296. 

Otis  V.  Cullum,  587. 

Otis  v.  Pennsylvania  Co.,  402. 

Otis  V.   Spencer,  66. 

Ottawa  County  v.  Aplin,  180. 

Ottaway  v.   Lowden,  437. 

Ottumwa   Belle,   The.   271. 

Oughton  V.  Seppings,  632. 

Oullahan  v.  Baldwin,   137. 

Outhwaite  v.  Luntley,  602. 

Outon  V.  Rodes,  351. 

Overman  v.  Kerr,  65. 

Owen  V.   Long,   186,  187,  190. 

Owen  V.  Stevens,  84. 

Owens   V.    Gunther,   197. 

Owens  V.  Lewis,  94. 

Oxendale  v.  Wetherell.  568,  649. 


Pabst  Brewing  Co.  v.  Liston,  343,  427. 

Pacific  Mail  S.  S.  Co.  v.  Joliffe,  626. 

Pacific  Mutual  Ins.  Co.  v.  Webb,  bio. 

Packard  v.  Richardson,  108. 

Packard  v.  Van  Schoick,  496,  497. 

Paddleford  v.  Thacher,  166. 

Paddock  v.   Davenport,  43. 

Paddock  v.  Robinson,  383.    • 

Paddock  v.   Stout,  513. 

Paddock  v.  Strobridge,  277. 

Paducah  Lumber  Co.  v.  Paducah  Water 

Supply  Co.,  443. 
Paducah  Lumber  Co.  v.   Water   Supply 

Co.,  451. 
Paetz  V.    Stoppleman,  283. 
Page  V.  Higgins,  501. 
Page  V.  Krekey,  234,  235. 
Page  V.   Morgan,   128. 
Page  V.  Trufant,  72. 
Paige  V.  Hieronymus,-367. 
Paine  v.  Brown,  567. 
Paine  v.  Loeb,  251. 
Paine  v.  Sherwood,  610. 
I'aine  v.  Upton,  255,  258. 
Painter  v.  Drum,  358. 
Palanche  v.  Colburn,  651. 
I'alfrey  v.  Railroad  Co.,  loS,  loo. 
Palm  V.  Fancher,  337. 
Palmer  v.  Andrews,  276. 
Palmer  v.  Bell,  281,  284. 
Palmer  v.  Insurance  Co.,  3»,  Oio. 
Palmer  v.  Largent,  601.         , 
Palmer  v.   Meriden   Britannia  Co.,  ocW, 

540. 
Palmer  v.  Miller,  218. 
I'almer  v.  Oakley,  236 
Palmer  v.  Palmer,  00   504. 
Palmer  v.   Railroad  Co.,  537. 
Palmer  v.  Roath,  492. 
Palmer  v.   Stebbins,  72. 
Palmer  v.   Stephens.   111. 
Palmer  v.  Temple,  578. 
Palmer  v.   Witcherly,  85. 
Palo  Alto,  The,  46. 
Palo  Pinto  Co.  v.  Gano,  45d. 
Paugboru  v.  Westlake,  321, 


708 


CASES   CITED- 
[Tb«  flfurM  refer  to  pases] 


Pape  V,  Wright,  431. 

Paradine  v.  Jane,   591,  592. 

Paramour  v.   Yardley,  209. 

Parcell  v.  McComber,  579. 

Parcher  v.  Marathon  Co.,  635. 

Park  V.  Whitney,  38. 

I'arker  v.   Cousins.  338. 

Parker  v.  Crole,  632. 

Parker  v.  Davis,  228. 

Parker  v.  Dillingham,  85. 

Parker  v.  Ibbetson,  538. 

Parker  v.  Macomber.  598,  648. 

Parker  v.  Moore,  435. 

Parker  v.  Pettit,  55,  554. 

Parker  v.  Pitts,  332. 

Parker  v.  Railway  Co.,  24. 

Parker  v.  Russell,  561. 

Parker  v.  Southeastern  Ry.  Co.,  24, 

Parkersburg  v.  Brown,  429. 

Parks  V.   Ingram,  551. 

Parks  V.  McKaray,  420. 

Parmelee  v.   Cameron,  312. 

Parmelee  v.   Simpson,  67. 

Parmelee  t.  Wiiks,  330. 

Parmentier  v.  Pater,  299. 

Parsons  v.  Elv,  313. 

Parsons  v.  Hill.  203. 

Parsons  v.  Keys,  199. 

Parsons  v.  Loucks,  125. 

Parsons  v.  Woodward,  456. 

Partridge  v.  Hood,  367. 

Partridge  v.  Insurance  Co.,  500. 

Partridge  v.  Messer,  318. 

Pass  V.  Brooks,  118. 

Pass  V.  Security  Co.,  338. 

Passano   v.  Acosta,   130. 

Passmore  v.  Telegraph  Co.,  4l>4. 

I'atchin  v.  Cromach.   187. 

Patchin  v.  Swift,  108. 

Patmore  v.  Colburn,  527. 

Patnote  v.  Sanders,  554. 

Paton  V.   Stewart,   364. 

Patrick  t.  Bowman,  42. 

Patrick  v.  Littell,  239. 

Patrick  v.  Putnam,  597. 

Patrick  V.   Shaffer,  618. 

Patt  V.  Gerst,  lOo. 

Pattee  v.  Greely,  328. 

Patten  v.   Glatz,  282. 

Patten  v.  Hicks,  119.  650. 

Patterson  v.  Caldwell,  460. 

Patterson  v.  Collar,  21,  646. 

Patterson  v.  Cox.  555. 

Patterson  v.  Crowther.  495,  497. 

Patterson  v.  Donner,  364. 

Patterson  v.  Gibson,  303. 

Patterson  v.   Kirkland,  277. 

Patterson  v.  Lippincott,  192. 

Patterson  v.  Martz,  619. 

Patterson  v.  Mever,  92. 

Patterson  v.  Prior,  633. 

Patterson  &  Holden  v.  Sargeant,  Osgood 

&  Roundy  Co.,  127,  128. 
Pattison  v.  Hull,  550. 
Pattison  t.  Shaw,  180. 
Patton  V.  Arney,  52. 
I'atton  V.  Gilmer,  179. 
Patty  V.  Milne,  548. 
Paul  T.  Hadley,  277. 


Paul   T.  Kenosha,  587. 

Paul  V.  Meservev,  527. 

Paul  V.  Owings,  492. 

Paul  V.  Smith,  196. 

Pawlak  V.  Granowski.  117. 

Paxton  V.  Popham,  72. 

Paxton  V.  W^ood.  525. 

Paxton  Cattle  Co.  v.  Bank,  15L 

Payne  v.   Brecon,  420. 

Payne  v.  Cave,  25,  26,  39. 

Payne  v.  Haine,  494. 

Payne  v.  Long,  605. 

Payne  v.  Newcomb.  .339. 

Payne  v.  Wilson,   152. 

Paynter  v.  Chamberlvn,  134. 

Paynter  v.  Williams,  18,  173. 

P.  Cox  Shoe  Co.  v.  Adams,  287. 

Peabody  v.  Bement,  492. 

Peabody  v.  Kendall,  224. 

Peabody  v.  Norfolk,  392. 

Peabody  v.  Speyers.  102,  361. 

Peace    River    Phosphate    Co.    v.    Graf- 
flin,  571,  610. 

Peacock  v.  Cummings,  538. 

Peale  v.  Grossman,  551. 

Pearce  v.  Brooks,  413. 

Pearce  v.  Railroad  Co.,  242. 

Pearce  v.   Walker,   549. 

Pearce  v.   Watts,  55. 

Pearce  v.  Wilson,  367. 
Pearl  v.   McDowell,  226. 

Pearsall  v.  Dwight.  432. 

Pease   v.   Hirst.  478. 

Peaslee  v.  Robbins,  225. 

Peavey  v.  Tilton,  Gt),  ti7. 

Peck  V.  Brewer,  201,  292. 

Peck   V.  Briggs,  417. 

Peck  V.  Cary,  234. 

Peck  V.  Gofif,  85. 

Peck  V.  List,  318. 

Peck  V.  Vanderaark,  106,  110,  143. 

Peck  &  Co.  V.  Corrugating  Co.,  560. 

Peckham  v.  Balch,  116. 

Peckham  v.  Lane,  380. 

Peden  v.  Railway  Co.,  468,  470. 

Peebles  v.   Stephens,  276. 

Peek  V.  Deery,  289. 

Peek  V.  Gurney,  269,  273,  288. 

Peek  T.  Peek,  116.  136. 

Peele  v.  Powell,  84. 

Peelman  v.  Peelman,  160. 

Peerless  Glass  Co.  v.  Tinware  Co.,  250- 

Peeters  v.  Lamborn,  85. 

Pegram  v.  Te]e?;raph  Co.,  255. 

Peigne  V.  Sutclifife.  220. 

Peirce  v.  Corf,  110. 

Peltz  V.  Eichele,  388,  409. 

Pemberton  v.   Vaughan,  390. 

Pemberton  v.  Williams,  302. 

Pence  v.  Langdon,  293. 

Pendergast  v.  Reed,  282. 

Pendleton  v.  Asbury,  362. 

Penfold  V.  Insurance  Co.,  505. 

Penn  v.  Bornman,  322,   323. 

Penn  v.   Railroad  Co.,  537. 

Pennell  v.  Transportation  Co.,  498. 

Penniman  v.  Hartshorn,  111. 

Pennington  v.  Gittings,  135. 

Peiuungton  v.  Howland,  54L 


Pennock's  Appeal,  319. 
Pennsylvania  Co.  v.  Dolan,  56,  98. 
Pennsylvania  Co.  v.  Lombardo,  375. 
Pennsylvania   Co.   v.  Wentz,  409. 
Pennsylvania    Coal    Co.     v.    Sanderson, 

Pennville    Natural    Gas    &    Oil    Co.    v. 

Thomas,  521. 
Pennybacker  v.  Laidley,  289. 
Penny  packer  v.  Jones,  516. 
Pennywit  v.   Foote,   61. 
Penrose  v.  Curren,  220,  221. 
Pensacola  Gas  Co.  v.  Lotze,  504. 
People  v.  Backus,  509. 
People  V.  Barrett,  62. 
People   V.   Coler,    320. 
People  V.  Fallon,  343. 
People  v.  Fisher,  399,  400. 
People  V.  Gillson,  320,  347. 
People  V.  Glann,  578,  582. 
People  V.  Gray,  455. 
People  V.  Harrison,  481. 
People  V.  Insurance  Co.,  594. 
People  v.  Lee,  509. 
People  V.  Lovin,  346,  347. 
People  V.  McPhee,  347. 
People  V.  Marx,  321. 
People  V.  Mercein,  384. 
People  V.  Milk  Exchange,  395. 
People  v.  Moores,  188,  189,  198,  645. 
People  v.  Mullin,  188. 
People  V.  Murphy,  510. 
People  V.   Refining  Co.,  394. 
People  V.   St.  Louis,  180. 
People  ▼.  Talmage,  180. 
People  V.  Wood,  633. 
People's  Bank  v.   Bogart,  277. 
People's   Bank  of  City  of  New  York  y 

Bogart,  273,  276. 
People's  Bldg.  Ass'n  v.  Klauber,  509. 
People's  Natural   Gas  Co.  v.  Wire  Co 

510.  ' 

People's  Sav.  Bank  v.   Borough  of  Nor- 

walk,  554. 
Peopler  v.  Supervisors,  281. 
^eoi-ia  &   R.   I.  R.   Co.   v.  Mining   Co., 

Pepin  V.  SocietS,  330. 
Pepper  v.  Telegraph  Co.,  255. 
Perevia  v.   Perevia,  382. 
Perin  v.  Parker,  628. 
Perine  v.   Dunn,   372. 
Perkins  v.  Beck,  555. 
Perkins   v.   Cheney,   175. 
Perkins  v.  Cumminirs,  407. 
Perkins  v.   Eaton,   342. 
Perkins  v.  Gay,  253. 
Perkins  v.  Hadsell,  111. 
Perkins  v.   Headley,   165. 
Perkins  v.  Hoyt,  524. 
Perkins  v.  Lockvpood,  166. 
Perkins  v.   Pendleton,  44L 
Perkins  v.   Savage,  425. 
Perkins  v.  Westcoat,  50,  83. 
Perot  V.  Cooper,  549,  550. 
Perrin  v.  Lepper,  470. 
Perrin  v,  Wilson,  195,  196,  198. 
Pfrrine  v.  Chocsenian,  60,  04,  138. 
Perry  v.  Buckman,  589. 


CASES   CITED 
[The  figures  refer  to  pages] 


709 


Perry  v.  Chesley,  621. 
Perry  v.   Cobb,   369. 
Perry  v.  Iron  Co.,  31,  556. 
Perry  v.  Pearson,  225,  293. 
Person  v.  Chase,  203. 

Peter  v.  Compton,  96. 

Peters  v.  City  of  Davenport,  353. 

Peters  v.   Davis,  479. 

Peters  v.  Fleming,  194,  195,  199. 

Peters  v.  Grim,  425,  426. 

Peters  v.   Railroad  Co.,  635. 

Peters  t.  Rylands,  3G0. 

Peters  v,  Westborough,  98. 

Peters  Box  &  Lumber  Co.  v.  Lesh.  250. 

Peterson  v.  Laik,  211. 

Peterson   v.    Mayer,    579. 

Peterson  v.  Mayor,  etc.,  241. 

Petit  V.  Minnesota,  328. 

Petrie  v.  Bury,  478. 

Petrie  v.  Torrent,  93. 

Petrie  v.  Williams.  205,  215. 

Pettigrew  v,  Chellis,  286. 

Pettis  V.  Ray,  615. 

Pettit's   Adm'r   v.    Pettit's   Distributeea. 
40  (. 

Petty  V.  Alien,  615. 

Petty    V.    Young,    22. 

Peugh  V.  Davis,  313. 

Peyson  v.  Conniff,  84. 

Pfaff  v.  Cummings.  85. 

Pfalf  V.  Golden,  469. 

Pfeiffer  v.  Campbell,   157. 

Pfennig  v.  Scholer,  339. 

Phelan  v.  Fitzpatrick,  621. 

Phelan  v.  Gardner,  234. 

Phelps  V.  Hubbard,  552,  570. 

Phelps  V.   Seely,  533. 

Phelps  V.   Sheldon,  19. 

Phelps  V.  Stillings,  106. 

Phelps  V.  Worcester,   197. 

Phelps  V.  Zuschlag,  300. 

Phetteplace   v.   Bucklin,   638. 

Philadelphia,  W.  &  B.  R.  Co.  v.  Howard, 

566,  568. 
Philadelphia,    W.   &   B.    R.   Co.  v.   Leh- 
man, 330. 
Philadelphis's  Appeal,  460. 
Philadelphis  Trust,  Safe  &  Deposit  Inn. 

Co.  V.  Allison,  234. 
Philbrook  v.  Belknap,  650. 
Philip  Hiss  Co.    v.  Pitcairn,  540. 
Philipson  v.  Bates'  Ex'r,  636. 
Phillips  V.   Barber,  507. 
Phillips  v.  Bristolli,  128. 
Phillips  V.  Commissioners,  373. 
Phillips  V.  Foxall,  270. 
Phillips  V.  Frye,  135. 
Phillips  V.  Graves,  239. 
Phillips  V.   Green,   212. 
Phillips  V.  Hatch,  182. 
Phillips  V.  Henry,  303. 
Phillips    v,    Innes,    330. 
Phillips  V.   Lloyd,  197. 
Phillips  V.  Moses,  549. 
Phillips  V.  Ocmulgee  Mills,  124 
Phillips  V.  Preston,  146. 
Phi]Iii)s  v.  Pullen.  144,  154. 
Phillips  V.    Swank,   108. 
I'hillips  v.  Wiginton,  607. 


710 


CASES   CITED 
[Th»  figures  refer  to  pages] 


Phillips  &  Colby  Const.  Co.  v.  Seymour, 
513,  567,  584. 

Philpot  V.  Bingham,  191. 

Philpot  V.  Gruninger,  135. 

Phippen  v.   Stickney,  319. 

Pho&nix  Ins.  Co.   v.   Badger,  369. 

Phoenix  Ins.  Co.  v.  Rink,  157. 

Phoenix  Ins.   Co.  v.  Slaughter,  508. 

Phoenix  Ins.  Co.  v.  Zlotky,  369. 

Phoenix  Life  Assurance  Co.,  In  re,  643. 

PhcEnix   Mut    Life   Ins.   Co.  v.    Raddin, 
267. 

Phoenix  Pub.  Co.  v.  Clothing  Co.,  492. 

Picard  v.  Hire,  240. 

Pickens  v.  Rymer,  65. 

Pickering  v.   Appleby,   125. 

Pickering  v.  Cease,  344. 

Pickering  v.  De  Rochemont,  521. 

Pickering  v.  Gunning,  194. 

Pickering  v.   Railway  Co.,  406,   410. 

Picket     Pub.     Co.     v.     Carbon     County 
Com'rs,  349,  350. 

Pickett  V.  Bank,  549. 

Pierce  v.  Brown,  298,  299,  300. 

Pierce  v.  Burnham,  237. 

Pierce  v.  Fuller,  143. 

Pierce  v.  Hilton,  619. 

Pierce  v.  Indseth,  64. 

Pierce  v.  Jones,  166. 

Pierce  v.  Knight,  551. 

Pierce  v.  Paine's  Estate,  100. 

Pierce  v.   Pierce,  167,  309,  407. 

Pierce  v.  Seymour,  621. 

Pierce  v.  Tidwell,  490,  504. 

Pierce  v.  Wimberly,  175« 

I^iersol  v.  Grimes,  604. 
Pierson  v.  Hooker,  479. 
Pierson  v.  Morch,  47. 

Pigot's  Case,  409,  604. 

Pike   V.   Brown,   79. 

Pike  V.  McDonald,  617. 

Pilkington   v.    Scott,   140. 

Pillans  V.  Van  Mierop,  138. 

Pillen  V.  Erickson,  333. 

Pillow  V.  Roberts,  64. 

Pillsbury  v.  Locke,  503. 

Pinches  v.   Lutheran   Church,   540,   541, 

648. 
Pinckney  v.  Dambmann,  513. 
Pindall's  Ex'rs    v.  Bank,  545. 
Ping  Min.  &  Mill.  Co.  v.  Grant,  217. 
Pingry   v.   Washburn,  362. 
Pinkham  v.  Gear    281. 
Pinkham  v.  Pinkham,  257. 
Pinnel's  Case,  161,  163,  164. 
Pinney  v.  First  Nat.  Bank,  322. 
Pinney  v.   Jorgenson,   554. 
Pinney  v.  Railroad  Co.,  512. 
Piper  V.   Boston,   315. 
Piper  V.  Boston  &  M.  R.  R.,  409. 
Piper  V.  Choctaw  Northern  Townsite  & 

Imp.  Co.,  359. 
Piper  V.  Fosher,  99. 
Pipp  V.  Reynolds,  445. 
Pippen  V.  Insurance  Co.,  206,  219. 
Pireaux  v.  Simon,  79. 
Pitcher  v.  Bailey,  629. 
Pitcher  v.  Lay  rock,  211. 
Pittman  v.  Elder,  175. 


Pittman  v.  Pittman,  559. 

Pittsburg,  C,  C.  &  St.  L.  R.  Co.  v.  Cox, 

349,  403. 
Pittsburg,    C,    C.   &    St.   L.    R.    Co.    v. 

Moore,  403. 
Pittsburgh    C,  C.  &  St.  L.  Ry.  v.   Vol- 

kert    373 
Pittsburgh,' FL  W.  &  C.  R.  Co.  v.  Reno. 

468. 
Pittsburgh  &  L.  R.  Iron  Co.  v.  Iron  Co.. 

256. 
Pixley  V.  Boynton,  346,  418. 
Pixley  V.  Railroad  Co.,  241. 
Plaisted  v.  Palmer,  332. 
Planche  v.  Colburn,  564. 
Plank  V.  Jackson,  417. 
Piano  Mfg.  Co.  v.   Ellis,   503,  504,  503. 
Plaster  v.  Rigney,  227. 
Platner  v.    Sherwood,   184. 
Piatt  V.  Brand,  558. 
Piatt  V.  Colvin,  452. 
Plummer  v.  Bucknam,  651. 
Plummer  v.  People.  303,  304. 
Pocahontas  Coke  Co.  v.  Powhatan  Coal 

&  Coke  Co.,  393,  394. 
Poland  V.  Brownell,  284. 
Polhemus  v.  Heiman,  568,  581,  5SS. 
Polhill  V.   Walter,  288. 
Pollok  Bros.  V.  Niall-Herin  Co.,  545. 
Pond  V.  Carpenter,  236. 
Pond  V.  Sheean,  116. 
I'ond  V.   Williams,  549. 
Ponder  t.  Jerome  Hill  Cotton  Co.,  345. 
I'ool  V.   Boston,  353. 
Pool  V.  Horner,  172. 
Pooley  V.  Harradine,  482, 
Poor  V.  Woodburn,  296. 
Pope  V.  Allis,  580,  581. 
Pope   V.  Andrews,  30. 
Pope  V.  Manufacturing  Co.,  512. 
Pope  V.  Marshall.  334. 
Pope  V.  Porter,  571. 
Poplett  V.  Stockdale,  317. 
Popp  V.   Swanke,   115. 
Poppers  V.  Meagher,  516. 
Port    Clinton    R.    Co.   v.    Railroad    Co.. 

613. 
Porter  v.  Day,  343. 
Porter  v.   Dunlap,  462. 
Porter  v.  Everts'  Estate.   18. 
Porter  v.  Jefferies,  256,  340,  640. 
Porter  v.  Rose,  146,  576. 
Porter  v.  Water  Co.,  612. 
Porterfield  v.   Butler,  175,   236. 
Portner  v.  Kirschner,   307. 
Portsmouth  Brewing  Co.  v.  Mudge,  425. 
Posey  V.  Scales,  57b. 
Post  V.  Bank,  164,  299. 
Post  V.  Kearney,  469. 
Potsdamer  v.  Kruse,  568. 
Potter  V.  Arnold,   92. 
Potter  V.  Douglass,  164. 
Potter  V.  Earnest,  589. 
Potter  V.  Hopkins,  492. 
Potter  V.   Jacobs,   117. 
Potter  V.  McCoy,  476. 
Potter  V.  Mining  Co.,  370,  373,  375. 
Potter  V.  Morland,  495. 
Potter  V.  Peters,  110. 


CASES   CITED 
[The  figures  refer  to  pages] 


711 


Potter  V.  Sanders,  31. 

Potter  V.  Tuttle,  513. 

Potter  V.  Van  Vranken,  474. 

Potthoff  V.  Safety  Armorite  Conduit  Co., 
506,  507. 

Potts  V.  Bell,  361. 

Potts  V.  Plaisted,  555. 

Potts  v.   Polk  Co.,  154. 

Potts  V.  Whitehead,  34,  38. 

Poulton  V.  Lattimore,  581. 

Poussard  v.  Spiers,  583. 

Powell   V.   Blow,   530. 

Powell  V.  Bradlee,  274. 

Powell  V.  Duff,  69. 

Powell  V.  Flanary,  367. 

Powell  V.  Rees,  632. 

Power  V.  Rankin,  87. 

Powers  T.  Bumcratz,  30. 

I'owera  v.   Clarke,  509. 

Powers  V.   Fowler,  281. 

Powers  V.  Skinner,  355. 

Powers  Dry  Goods  Co.  v.  Harlin,  318. 

Pownal  V.  Ferrand,  628. 

Prater  v.   Miller,   153. 

Pratt  V.   Bowman,  255. 

Pratt  V.  Burhans,  289. 

Pratt  V.  Humphrey,  81. 

Pratt   V.    Miller,   124. 

Pratt  V.  Trustees  of  Baptist  Soc,  46. 

Prautsch  v.  Rasmussen,  569. 

Pray  v.  Burbank,  322,  327. 

Pray  v.  Mitchell,  126. 

Preachers'  Aid   Soc.  v.  England,  446. 

Prentiss  v.  Ledyard,  538. 

Presbury  v.  Fisher,  409. 

Presbyterian  Board  of  Foreign  Missions 
V.  Smith,  134,  140,  148. 

Presbyterian  Church  of  Albany  v.  Coo- 
per, 147. 

Prescott  V.  Jones,  25,  28. 

President,  etc.,  of  Atlas  Bank  v.  Presi- 
dent, etc.,  429. 

President,  etc.,  of  Bangor  Bank  v.  Treat, 
481. 

President,  etc.,  of  Bank  of  Portland  v. 
Brown,  551. 

President,  etc.,  of  Delaware  &  H.  Canal 
Co.  V.  Coal  Co.,  368. 

President,  etc.,  of  Michigan  State  Bank 
V.  Hammond,  180. 

President,  etc.,  of  Michigan  State  Bank 
V.  Hastings,  180. 

President,  etc.,  of  Niagara  Bank  v. 
Rosevelt,  551. 

President,  etc.,  of  Springfield  Bank  v. 
Merrick,  322. 

Pressed  Steel  Car  Co.  v.  Railroad  Co., 
508,  516. 

Preston  v.  Bacon,  353. 

Preston  v.  Boston,  634,  635. 

Preston  v.  Grant,  616,  617. 

Price  V.  Bank,  155. 

Price  V.  Bank  of  Poynette,  800. 

Price  V.  Campbell,  334,  339. 

Price  V.  Caperton,  352. 

I* rice  V.  Easton,  444. 

Price  V.  Furman.  205.  214,  215,  219. 

Price  V.  Hay,  185. 

Price  V.  Jennings,  196,  222. 


Price  V.  Lien,  115. 

Price  V.  McCauley,  268. 

Price  V.  Mitchell,  157. 

Price  V.  Moulton.  71,  599. 

Price  V.  Neal,  639. 

Price  V.  Railroad  Co.,  480. 

Price  V.  Sanders,  197,  198. 

Price  V.   Seaman,  457. 

Price  V.  Stipek,  55. 

Prichard  v.  Sharp,  301. 

Prickett  v.  Badger,  607. 

Priest  V.  Cone,  239. 

Priest   V.    White,  289. 

Priester  v.  Priester.  135. 

Prime  v.  Koehler,  86,  87. 

Primrose  v.  Telegraph  Co.,  404. 

Printing  &  Numerical  Registering  Co.  ▼. 

Sampson,  349,  393,  398. 
Pritchard  v.  Brown,  71. 
Pritchard  v.  Norton,   121. 
Pritchard  v.  Pritchard,  22. 
Pritzlaff   Hardware    Co.    v.    Berghoefer, 

577. 
Proctor  V.  Hartigan,  494. 
Proctor  V.  Sears,  208. 
Proprietors  of  Cardigan  v.  Page,  351. 
Proprietors   of  Charles  River  Bridge   V. 

Proprietors  of  Warren  Bridge,  509. 
Proprietors    of    Mill-Dam     Foundry    v. 

Hovey,  566,  567. 
Proprietors  of  the  Canal  Bridge  v.  Gor- 
don,  241. 
Prosser  v.  Edmonds,  374. 
Prosser  v.   Evaus,  477. 
Protector  Loan  Co.  v.  Grice,  518. 
Prout  V.  Pittsfield  Fire  Dist.,  155. 
Prout  V.  Wiley,  206. 
Prouty  V.   Edgar,  189. 
Providence  Coal  Co.  v.  Coxe,  571. 
Providence    Life   &    Trust    Cfo.    v.    Fiss, 

470. 
Prowse  V.   Worthinge,  550. 
Prutsman  v.  Baker,  67,  68. 
Pryor  v.  Foster,  291. 
Public  Clearing  House  v.  Coyne,  347. 
Puckett  V.  Alexander,  322,  325,  437. 
Puffer  V.  Smith,  248. 
Pugh  V.  Powell,  632. 
Pugh  V.  Stringfield,  478. 
Pugsley  V.  Murray,  379. 
Pulliam  V.  Withers,  602. 
Pullman's    Palace    Car   Co.    t.    Central 

Transp.  Co.,  643. 
Pulsifer  v.  Sbepard,  555. 
Purcell  V.  Miner,  117. 
Purdy  V.  Railroad  Co.,  402. 
Purner  v.  Piercy,  94. 
Pursley  v.  Hays,  210. 
Purves'  Estate,  In  re,  54. 
Purvines  v.   Harrison,  501. 
I'ust  v.  Dowie,  584.  585. 
Putnam  v.  Field,  447. 
Putnam  v.  Grace.  35. 
Putnam  v.  Insurance  Co.,  77. 
Putnam  v.   Sullivan,   249. 
Putnam  v.  Tennyson,  175. 
Putnam  v.  Woodbury,  160. 
Pyke's  Case,  417. 
Pyle  V.  Cravens,  191. 


712 


Pym  T.   Campbell,  490. 
Pyne  t.  Wood,  195,  211. 


CASES   CITED 
[The  flcurea  refer  to  paces] 


Quarles  v.  State,  329. 

Quarton    v.    American    Law    Book    Co. 

561,  569,  573. 
Quick  V.  Wheeler.  39. 
Quigley  v.  De  Haas,  492,  566,  578. 
Quimby  v.  Cook,  337. 
Quimby  v.  Shearer,  246. 
Quinlan  v.  Green  County,  568. 
Quinn  v.  Champagne,  107. 
Quinn  v.  Roath,  513. 
Quinn  v.  Stout,  535. 
Quirk  V.   Muller,  364. 
Quirk  V.  Thomas,  418. 
Quirk  Mill.  Co.  v.  Minneapolli  &  St  L. 

R.  Co.,  349,  402.  403. 

R 

Raabe  v.  Squier,  88. 

Rabberman  v.  Wiskamp,  86. 

Raby  v.  Reeves,  470. 

Radley  v.  Kenedy,  219. 

Rae  V.  Hulbert,  624,  626. 

Rafferty  v.  Lougee,  110. 

Rafl3ea  v.   Wichelhaus,  253. 

Rafolovitz  V.  Tobacco  Co.,  148. 

Rahter  v.  First  Nat.  Bank,  323^ 

Railroad  Co.  v.  Trimble,  510. 

Railsback  v.  Walke,  100. 

Rains  v.  Wheeler,  382. 

Raisin  v.  Clark,  499. 

Rakestraw  v.  Lanier,  390,  391. 

Raleigh  &  G.  R.  Co.   v.  Reid,  509. 

Ralph  V.  Taylor,  234. 

Ralston  v.  Boady,  414. 

Ralston  v.  Wood,  546. 

Ramloll  V.  Soojumnull,  342. 

Ramsay  v.  Warner,  549. 

Ramsdell  v.  Edgarton,  318. 

Ramsey  v.  Morrison,  337. 

Ramsgate   Hotel  Co.   v.   Montefiore,  39, 

45. 
Rand  v.  Mather,  406. 
Rand  v.  Webber,  641. 
Randall  v.  Morgan,  50. 
Randall  v.  Protective  Union,  434. 
Randall  v.  Randall,  382. 
Randall  v.  Rich,  630. 
Randall  v.  Sweet,  197. 
Randall  v.  Tuell,  322,  326. 
Randolph  v.  Halden,  500. 
Randolph  Iron  Co.  v.  Elliott,  250. 
Randolph's  Ex'r  v.  Quidnick  Co.,  144. 
Rann  v.  Hughes,  60,  137,  138. 
Rannels  v.  Gerner,  228, 
Ransdel  v.   Moore,  448. 
Raper  v.  Birkback,  604. 
Rapid    Transit    Land    Co.    v.    Sanford, 

210. 
Rapley  v.  Klugh,  493. 
Rappanier  v.  Bannon,  154. 
Rappleye  v.  Seeder  Co.,  453,  458 
Ratliff  V.  Baltzer's  Adm'r,  225 


Ratliff  V.  Vandikea,  292. 

Rau  V.  Boyle,  3.56. 

Raub  V.  Smith   93. 

Rawlins   v.   A\  ickham,   29L 

Rawson  v.  Davidson,  602. 

Rawstome  v.  Gandell,  479. 

Ray   V.   Haines,  204.   219. 

Ray  V.   Mackin,  319. 

Ray  V.  Thompson,  535. 

Ray  V.  Tubbs,  189,  221. 

Raymond    v.    Farmers'    Mut.    Fire    Int. 
Co.,  369. 

Raymond  v.  Insurance  Co.,  368. 

Raymond  v.  Leavitt,  397,  417. 

Rayner  v.   Wilson,  268. 

Raynor  v.  Drew,  96,  492. 

Read  v.  Anderson,  43L 

Read  v.  Legard,  226. 

Read  v.  Loftus,  599. 

Reader  v.  Kingham.  88. 

Reading  v.   Price,  619. 

Ready  v.  Pinkham    213. 

Real  Estate  Sav.  Inst.  v.  Linder,  640. 

Reando    v.   Misplay,   226,   227. 

Rebman  v.  Water  Co.,  650. 

Rector,    etc.,    of    St.    Mark's    Church    v. 

Teed,  151. 
Redding  v.   Lamb,  588. 
Redding  v.  Wright,  283. 
Redgrave  v.  Hurd,  270,  283,  289.  293. 
Redlich  v.  Doll,  605. 
Reece   Folding    Mach.    Co.    t.    Fenwick, 

Reed  v.  Batchelder,  174. 

Reed  v.  Boshears,  208. 

Reed  v.  Breeden,  513. 

Reed  v.  Brewer,  414. 

Reed  v.  Evans,  109. 

Reed   v.   Insurance    Co.,   368.   369.   493. 

506. 
Reed  v.  Johnson.  359. 
Reed  v.  Lane,  190. 
Reed  v.  Peterson,  269.  310. 
Reed  v.  Warehouse,  362. 
Rees  V.  Berrington,  482. 
Rees  V.  Logsdon,  71,  513. 
Reese  River  Min.  Co.  v.  Smith,  285,  288. 
Reeve  v.  Association,  334. 
Reeve  v.  Dennett,  288. 
Reeves  v.  Brayton,  71. 
Reeves  v.  Corning,  279. 
Reeves'  Estate  v.   Moore.  21. 
Reg.    V.    Rowlands,    400. 
Regan  v.  Baldwin,  635,  636. 
Regents   of    University   of   Michigan   ▼. 

bociety,  241. 
Reger  v.  O'Neal,  335. 
Regester  v.  Dodge,  530. 
Reichenbach  v.   Sage,  591. 
Reid  v.  Hibbard.  164. 
Reif  V.  Paige,  18,  48. 
Reiger  v.  Turley,  524. 
Reilly  v.  Chouquette,  507. 
Reindl  v.  Heath,  567. 
Reinskopf  v.  Rogge,  234.  235. 
Relief   Fire   Ins.   Co.   v.    Shaw,    77. 
Renard   v.   Sampson,   527. 
Renner  v.  Bank.  498. 
Rentch  v.  Long,  125. 


CASES   CITED 
[Tb«  figures  refer  to  pages] 


713 


Repetti  v.  Maisak,  108. 
Republic  of  Colombia  v.  Cauca  Co.,  181. 
Keticker  v.  Katzenstein,  274. 
Reusens  v.   Staples,  64. 
Reuss  V.  Picksley,  104,  109,  111,  131. 
Reybold  v.  Voorhees,  571. 
Reynell  v.  Sprye,  428. 
Reynolds  v.  Hassam,  492, 
Reynolds  v.  McCurry,  215. 
Reynolds  v.  Nugent,  159. 
Reynolds  v.  Palmer,  585. 
Reynolds   v.   Reynolds,   16L 
Reynolds  v.  Robinson,  490. 
Reynolds   v.    Stevenson    329. 
Reynolds  v.  Waller's  Heirs,  234. 
Rheel  v.  Hicks,  637,  638. 
R.  H.  Herron  Co.  v.  Mawby,  547. 
Rhine  v.  Ellen,  488. 
Rhoads  v.  Jones,  71. 
Rhodes  v.  Bates,  310. 
Rhodes  v.   Neal,  356. 
Rhodes  t.   Rhodes,   226.  645. 
Rhodes  v.   Sparks,   365. 
Rhodes  v.  Stone,  377. 
Rhodes  v.  Wilson,  494. 
Rice  V.   Boyer,  204,  205,  218,  220,  221. 
Rice  V.  Butler,  217. 
Rice  V.  Caudle,  611. 
Rice  T.  D'Arville,  613. 
Rice  V.  Gist,  342. 
Rice  V.  Goddard,  589. 
Rice  V.  Grange,  589. 
Rice  V.  Insurance  Co.,  260. 
Rice  V.  Kahn,  553. 
Rice  V.  Manley,  442. 
Rice  V.  Manufacturing  Co.,  256. 
Rice  V.  Shute,  476.  477. 
Rice  V.  Williams,  378. 
Rice  V.  Wood,  378. 
Richards  v.  Allen,  114,  642,  651. 
Richards  v.  Day,  489. 
Richards  v.  Griggs,  462. 
Richards  v.   Heather,  477. 
Richards   v.    Seating   Co.,   389. 
Richards  y.  Shaw,  19,  568. 
Richards  v.   Skiff,  480. 
Richardson  v.  Aiken,  619. 
Richardson  v.   Buhl,   394, 
Richardson  v.  Campbell,  437. 
Richardson  v.  Crandall,  350,  42& 
Richardson  v.  Dorman,  325. 
Richardson  v.  Draper,  477. 
Richardson  v.  Duncan,  300. 
Richardson  t.  Hardwick,  38. 
Richardson  v.  Laboratory,  555. 
Richardson  v.  Lenhard,  45. 
Richardson  v.  Mining  Co.,  65. 
Richardson   v.   Pate,  207. 
Richardson  v.  Peacock,  613. 
Richardson  v.  People,  508. 
Richardson  t.  Pierce,  98. 
Richardson  v.  Richardson,  90. 
Richardson  v.  Rountree,  24. 
Richardson   v.  Rowlind.   370. 
Richardson  v.  Scobee,  33(j. 
Richardson  v.  Scotts  Bluff  County,  355. 
Richardson  v.  Strong,  226. 
Richelieu     Hotel     Co.     v.     International 
Military  Encampment  Co.,  148. 


Richison  v.  Mead,  542. 
Richmond  v.  Moore,  328,  329. 
Richmond   v.   Morford,   65,   68. 
Richmond  v.  Robinson,  513. 
Richmond  Ice  Co.  v.  Ice  Co.,  507. 
Richmond   Union  Pass.   R.   v.   Railroad 

Co.,  96. 
Richmond  &  D.   R.    Co.   v.   Jones,  402, 

487. 
Richter  v.  Poe,  346. 
Richter  v.   Stock  Co.,  590. 
Rick  V.  Kelly,  545. 
Ricketts  v.  Harvey,  366,  407. 
Riddle  v.   Keller,  332. 
Rideal  v.  Railway  Co.,  254. 
Rider  v.  Miller,  311. 
Ridgeley  y.  Crandall,  187. 
Ridgeway  y.  Hebert,  208. 
Ridgeway  v.  Herbert,  211,  215. 
Ridgway  y.  Wharton,  36,  52,  53. 
Ridley  v.   McNairy,   118. 
Riegel  y.  Insurance  Co.,  252. 
Riegelman  v.   Focht,  85. 
Rigby  v.  Connol,  400. 
Rigdon  y.   Walcott,  295. 
Riggan  v.  Green,  230. 
Riggs  y.  Bullingham,   171. 
Riggs  y.  Tract,  225. 
Righter  v.  Warehouse  Co.,  337. 
Riley  v.  Carter,  227,  228. 
Riley  y.   Jordan,  414. 
Riley  v.   Kershaw,  164. 
Riley  y.  Louisville,  H.  &  St.  L.  Ry.  Co., 

360. 
Riley  y.  Mallory,  205,  217. 
Riley  v.  Taber,  463. 
Riley   v.   Telegraph  Co.,  404. 
Riley   v.   Williams,   651. 
Rimer  v.  Dugan,  268. 
Rindskoff  v.  Barrett,  495,  504. 
Ring  V,  Jamison,  208. 
Ringer   v.   Holtzclaw,   105,  107. 
Rio  Grande  v.  Otis,  01. 
Riordan  v.  Presbyterian  Church,  46L 
Rioux  V.  Brick  Co.,  511,  514,  583. 
Ripley  v.  Case,  641. 
Ripley  y.  Crooker,  476. 
Ripley  v.  Insurance  Co.,  267. 
Rippy  y.   Grant,  311. 
Risley  y.  Bank,  461. 
Rison  y.  Newberry,  273. 
Ritchie  y.  Atkinson,  568,  570. 
Ritchie  v.  Smith,  323. 
Ritter  v.  Insurance  Co.,  376. 
Rivers  v.  A.  &  C.  Wright  &  Co.,  460. 
Rivers  v.  Gregg    193,  195,  196,  198. 
River  Steamer  Co.,   In  re,  621. 
Rives  V.  Dudley,  555. 
Roach  V.  Quick,  187. 
Robbins  y.  Avres,  71,  448,  451. 
Robbins   v.    Barton,    283, 
Robbins  v.  Eaton,  210. 
Robbins  v.   Kimball,  93. 
Robert  y.  Barnum,  166.  i 

Roberts  v,   Bonaparte,  492,  404,  505. 
Roberts  y.  Carter,  464. 
Roberts  v.  Cobb,  142. 
Roberts  v.  Donovan.   270.  276. 
Roberts  v.  Levy,  320. 


714 


CASES   CITED 
[The  figures  refer  to  pages] 


Roberts  v.  ^Rockbottom  Co.,  97, 

Roberts  v.  Security  Co.,  40,  66. 

Roberts  v.  Smith,  55. 

Roberts  v.  Tennell,   100. 

Roberts  v.  White,  553. 

Robertson  v.  Frank  Bros.  Co.,  635. 

Robertson  v.    Hunter,  84. 

Robertson  v.  Parks,  280. 

Robertson  v.   Robinson,   351. 

Robertson  v.  Tapley,  35. 

Robinson  v.   Barrows,  437. 

Robinson  v.  Batchelder,  533. 

Robinson  v.  Bland,  434,  435, 

Robinson  v.  Cook,  554. 

Robinson  v.  Coulter,  190. 

Robinson  v.  Davison,  597,  648. 

Robinson  v.  Doolittle,  550. 

Robinson  v.  Fairbanks,  535. 

Robinson  v.  Gould,  303. 

Robinson  v.  Green,  408. 

Robinson  v.  Harman,  608, 

Robinson  v,  Hornei-,  b'63. 

Robinson  v.  Jewett,  158. 

Robinson  v.  Kalbfleisch,  363. 

Robinson   v.    Marshall,   462, 

Robinson  v.  Read,  547,  548. 

Robinson  v.  Templar  Lodge,   368. 

Robinson  v.  Van   VIeet,   217. 

Robinson   v.   Weeks,   186,   214, 

Robinson  v.  Weller,  37. 

Robson  V.  Bohn,  567,  571,  572. 

Robson  V.  Drummond,  454,  458. 

Roby  V.  Carter,  363. 

Rochester  Lantern  Co.  v.  Press  Co.,  454, 
610. 

Rockafellow  v.  Newcomb,  143,  309. 

Rockford.  R.  I.  &  St,  L.  R,  Co.  v.  Shu- 
nick,  247. 

Rockwell  V.  Butler,  61. 

Rockwell  V.   Charles,   422, 

Rodecker  v.  Littauer,  335. 

Rodemeier  v.  Brown,  66. 

Rodgers  v.  Jones,  129, 

Rodgers  v.  Levy,  619. 

Rodgers   v.    Torrent,    460, 

Rodgers,  McCabe  &  Co.  v.  Bell,  4,  345. 

Rodijkeit  v.  Andrews,  459. 

Rodlitf  V.    Dollinger,   250. 

Rod  well  V.  Phillips,  94. 

Roebling's  Sons'  Co.  v.  Fence  Co.,  560. 

Roehl  V,   Haumesser,    109,   113. 

Roehm   v,    Horst,   558.  ^ 

Roesner  v.   Hermann,   402. 

Rogers  v.  Allen,  499. 

Rogers  v.  Blackwell,  227,  233, 

Rogers  v.   Bollinger,  70. 

Rogers  v.  Burr,  512. 

Rogers  v.   Carey,   66. 

Rogers  v.  Hardware  Co,,  87. 

Rogers  v.  Higgins,  306. 

Rogers  v,  Marriott,  345,  430. 

Rogers  v,  Pattie,  255. 

Rogers   v.   Phillips,  23a 

Rogers  v.  Rogers,  527. 

Rogers  v.  Sample,  337. 

Rogers  v,   Saunders,  619. 

Rogers  v.  Stone  Co.,  445, 

Rogers  v.  Van  Nortwick,  619. 

Rogers  v.  Ward,  238,  239. 


Rogers  v,   Wolfe,    116. 

Rogers   Mfg.   Co.   v.   Rogers,  613. 

Rohan  v.  Hanson,  549. 

Rohlf  V.  Kasemeier,  400, 

Rohman  v.  Gaiser,  448, 

Rohrof  V.  Schulte,  283. 

Rolfe    V.    Patrons'    Androscoggin    Mut. 

Fire  Ins.  Co.,  555. 
Roll  V.  Raguet,  366. 
Roller  V.  Murray.  375,  431,  432,  650. 
Roller  V.  Ott,  387. 

Rollins  V.  Marsh,  159,  524,  526,  527. 
Rollins  Inv.  Co.  v.  George,  612. 
Roman  v.  Mali,  424,  428. 
Rommel  v.  Wingate,  556. 
Rood  V.  Jones,  154. 
Root  V.  Merriam,  422, 
Roper  V,  Johnson,  558. 
Roquemore  v.  AUoway,  416. 
Rorabacher  v.  Lee,  480. 
Roscorla  v.  Thomas,  170. 
Rose  V.   Daniels.  161. 
Rose  V.  Duncan,  555. 
Rose  V.  Mitchell,  416. 
Rose  V.  Munford.  338,  339, 
Rose  V.  Truax,  355. 
Roserna  v.  Porter,  617. 
Roseman  v.  Canovan,  275. 
Rosenbaum   v.   Credit    System    Co.,  257, 

407.  408,  409,   410. 
Rosenberg  v.  Block,  632. 
Rosenblatt   v.   Townsley,  332. 
Rosenfiold   v.   Swenson,   19. 
Rosenstock   v.  Tormey,  499. 
Ross  v.  Conway,  309, 
Ross  v.   Craven,   113, 
Ross  v.  Doland.  249. 
Ross  V.  Hurd,  175. 
Ross  V.  Miner,  274. 
Ross  V.  Parks,  149. 
Ross  V.  Welch,  94. 
Rossiter  v.  Miller,  53. 
Rossnian  v.  Townsend,  440. 
Ross  P.  Curtice  Co.  v.  Kent,  204. 
Rotan  Grocery  Co.  v.  Noble,  162. 
Rotheram  Alum  Co.,  In  re,  445. 
Rotschild  v.   Mack,  286. 
Rottmann  v.   Pohlmann,  84. 
Roughton  V.  Rawlings,  93. 
Rountree  v.   Smith,  431. 
Rousillon  V.  Rousillon.  386,  389. 
Routledge  v.  Grant,  40. 
IU)vegno  V.  Defferari,  256. 
Row  V.  Dawson,  461. 
Rowe  V,  Barnes,   155. 
Rowe  V.  Moon,  449. 
Rowe  v.  Peabody,  591,  ? 

Rowland  v.  Bull,  338. 
Rowley   v.  Bigelow,  291,  296. 
Rowley  v.  Jewett,  601. 
Rowley  v.  Stoddard,  478. 
Royal  V.  Goss,  304. 
Royal  Ins.  Co.  v.  Beatty,  19, 
Roys  V,  Johnson,  412. 
Royston  v.  Miller,  246. 
Rucker  v.  Harrington,  534. 
Ruckman  v.  Bergholz,  ,321,  323. 
RucUman  v.  Bryan,  417. 
Ruckman  v.  Ruckman,  66. 


CASES   CITED 
[The  figures  refer  to  pages] 


715 


Rudesill  v.  Jefferson  Co.  Court,  603. 

Kudisill  V.  Cross,  91. 

Rue  V.  Meirs,  155. 

Ruff  V.  Jarrett,  285,  290,  588. 

Rugan  V.   Sabin,  293. 

Rugg  V.  Minett,  59G. 

Rugg  V.  Moore,  571,  572. 

Rumbough  v.  Southern  Imp.  Co.,  493. 

Runde  v.  Runde,  85. 

Rundle  v.  Spencer,  206. 

Runge  V.  Brown,  289. 

Runt  V.   Herring,  402. 

Runyan  v.  Latham,  548. 

Rupley  V.  Daggett,  256. 

Ruppe  V.  Peterson,  88. 

Rush  V.  Rush,  329. 

Rush  V.  Wick,  191. 

Russ  Lumber  &  Mill  Co.  v.  Water  Co., 

280,  588. 
Russell  V.  Allerton,  508. 
Russell  V.  Bell,  647,  648. 
Russell  V.  Courier  Printing  &  Pub.  Co., 

357. 
Russell  V.  Kirkbride,  463. 
Russell  V.  Mfg.  Co.,  35. 
Russell   V.   Murdock,  332. 
Russell  V.  Place,  618. 
Russell  V.  Post,   415. 
Russell   V.   Russell,   309. 
Russell  V.  Stewart,  49. 
Russell  V.  Wright,  155. 
Russell  V.  Young,  510. 
Rust  V.  Gott,  342. 
Rutherford  v.  Mclvor,  638. 
Rutland  Marble  Co.  v.  Ripley,  613. 
Ryall  V.  Rowles,  462. 
Ryan  v.  Ashton,  309. 
Ryan  v.  Hamilton,  391. 
Ryan  v.  McLane,  612. 
Ryan  v.  School,  326. 
Ryan  v.  U.  S.,  107,  109. 
Ryder,  Ex  parte,  198. 
Ryder,  In  re,  645. 

Ryder  v.  Wombwell,  193,  194,  195,  199. 
Ryer  v.  Stockwell,  47. 


Sable  V.  Maloney,  258. 

Safe  Deposit  &  Trust  Co.  of  Pittsburg 
V.  Diamond  Coal  &  Coke  Co.,  119. 

Safford  v.  Grout.  289. 

Safford  v.  McDonough,  128. 

Sage  V.  Wilcox,  79,  108. 

St.   Andrew  v.  Manufacturing  Co.,  464. 

St.  Joseph's  Orphan  Society  v.  Wol- 
pert,  646. 

St.  Joseph  &  D.  C.  R.  Co.  v.  Ryan,  358. 

St.  Joseph  &  G.  I.  R.  Co.  v.  Palmer, 
403. 

St.  Leger's  Appeal,  309. 

St.  Louis  Agr.  &  Mech.  Ass'n  v.  De- 
lano, 329. 

St.  Louis  Fair  Ass'n  v.  Carmody,  414. 

St.  Louis,  F.  S.  &  W.  R.  Co.  v.  Davis, 
161. 

St.  Louis,  L  M.  &  S.  R.  Co.  v.  O'Baugh, 
470. 


St.  Louis.  I.  M.  &  S.  R.  Co.  v.  Ruddell. 
67. 

St.   Louis,  J.  &  C.  R.  Co.  V.  Mathers, 
358 

St.  Louis,  K.  &  N.  W.  R.  Co.  v.  Clark, 
120. 

St.  Louis  Southwestern  Ry.  Co.  of  Tex- 
as V.  Mclntyre,  435. 

St.   Louis,  V.   &  T.  H.   R.  Co.  v.  Rail- 
road Co.,  424. 

St.   Louis   &   S.   F.   R.  Co.   v.   Gorman, 
36,  52. 

St.  Paul  &  D.  R.  Co.  V.  Blackmar,  510. 

St.     Regis     Paper     Co.    v.     Tonawanda 
Board  &  Paper  Co.,  545,  546. 

Sale  V.  Lambert,  104. 

Salem  India  Rubber  Co.  v.  Adams,  284. 

Salinas  v.  Bennett,  202. 

Salinas  v.    Stillman,   356. 

Salisbury  v.  Brisbane,  597. 

Salisbury  y.    King,  504. 

Salm  V.  Israel,  282. 

Salmon  v.  Boykin,  582. 

Salmon  Falls  Mfg.  Co.  v.  Goddard.  104. 
IIL 

Sampson  v.  Barnard,  603. 

Sampson  v.  Gazzan,  495. 

Sampson  v.  Shaw,  397. 

Sampson  v.  Townsend,  415. 

Sams  V.  Stockton,  193. 

Samuel  v.  Marshall,  226. 

Samuels  v.  Oliver,  397,  430. 

San   Antonio   Brewing  Ass'n  v.   Brents. 
594. 

San   Antonio   Irr.  Co.   v.  Deutschmann.. 
319 

Sanborn  v.  Flagler,  105,  111,  131. 

Sanborn  v.  Insurance  Co.,  77. 

Sanborn  v.  Little,  464, 

Sanborn  v,  Sanborn,  110. 

Sandage  v.  Mfg.  Co.,  322. 

Sandeen  v.  Railroad  Co.,  647. 

Sanders   v.   Bank,   163. 

Sanders  v.  Bennett,  206. 

Sanders  v.  Carter,  134. 

Sanders  v.  Fruit  Co.,  36.  53. 

Sanders    v.    Johnson,    329. 

Sanders   v.   Smith,   151. 

Sanderson  v.  Piper,  494. 

Sandford  v.  Handy,  2S2. 

Sands  v.  Sands,  307. 

Sandwich  Mfg.  Co.  v.  Earl,  618. 

Sanford  v.  Abrams,  164. 

Sanford  v.   Bank,   516. 

Sanford  v.  Howard,  39. 

Sanford  v.  Kane,  339. 

Sanford  v.  Sornborger,  301. 

San   Francisco   Bridge   Co.   v.    Improve- 
ment Co.,  586. 

San  Francisco  Credit  Clearing-House  v. 
McDonald,  228. 

Santa  Clara  Valley  Mil]  &  Lumber  Co. 
v.  Hayes.  395,  406. 

Sapphire,  The,  v.  Napoleon  III,  181. 

Sapsford  v.  Fletcher.  628. 

Saratoga  County  Bank  v.  King,  407. 

Sarbeckcr  v.    State,  29,   129. 

Sard  V.  Rhodes,  546. 

Sari  V.  Bourdillon,  13L 


■71G 


CASES    CITED 
[The  figures  refer  to  pages] 


Sarles  t.  Shadow,  96. 

Sarwell  V.  Sowles,  120. 

Sasportas  v.  Jennings,  302. 

Sattler  v.  Hallock,  504. 

Sauerhering  v.  Reuping,  380. 

Sault  V.  Stormont,  107. 

Sault   Ste.  M.,  L.  &  I.  Co.  T.  Simons, 

41. 
Saunders  v.  Blythe,  67. 
Saunders  v.  Clark,  507. 
Saunders  v.  McClintock,  280,  290. 
Saunders   v.   Wbitcomb,   164. 
Saunderson  v.   Marr,   191. 
Savage  v.  Gregg,  463. 
Savage  v.  Lichlyter,  201. 
Savage  v.  Savage,  605. 
Savannah    Ice   Delivery    Co.   T.  Transit 

Co.,  514. 
Saveland  v.  Green,  255. 
Saville  v.  Chalmers,  71. 
Saville,   Somes  &  Co.   v.  Welch,  632. 
Savings  Bank  of  Kansas  v.  Bank,  434. 
Sawtelle  v.  Drew,  498. 
Sawyer  v.  Brossart,  37. 
Sawyer  v.  Lufkin,  220.  227. 
Sawyer  v.  Mayhew,  344. 
Sawyer  v.  Prickett,  279. 
Sawyer  v.  Tappan,  548. 
Sawyer  v.   Ware,   123. 
Sax  V.    Railway   Co.,  98. 
Saxon  V.   Wood,  376. 
Sayer  v.  Wagstaff,  547,  548. 
Sayles  v.  Christie,  307. 
Sayles  v.  Smith,  328. 
Sayre  v.  King,  547. 

Sayward  v.  Dexter,  Horton  &  COn  449. 
Sayward  v.   Gardner,   106. 
Scales   v.   State,   328. 
Scanlan  v.  Cobb,  230. 
Scanlon  v.   Northwood,  160. 
Scanlon  v.  Warren,  346,  418. 
Scarborough  v.   Watkins,  308. 
Scarlett  v.  Stein,  514. 
Sceva  V.  True,  226,  623,  645. 
Schaeffer  v.  Miller,  623,  631.  636. 
Schaller  v.  Railway  Co.,  24. 
Schamp  v.  Schenck,  370. 
Schaper  v.  Schaper,  248. 
Schaps  V.  Lehner,  230. 
Schenectady  Stove  Co.  v.  Holbrook,  39, 

52. 
Schermerhorn   v.   Vanderheyden,  448. 
Scheuer  v.  Cocbem,  93. 
Scheuer  v.  Goetter,  296. 
Schiffer  v.  Dietz,  293. 
Schilling  v.  Black,  481. 
Schilling  v.  Mullen,  461,  463. 
Schlesinger  v.   Gilhooly,    340. 
Schlesinger  v.   Lehmaier,  340. 
Schlesinger  v.   Stratton,   535. 
Schlessinger  v.  Forest  Products  Co.,  458. 
Schliess  v.  Grand  Rapids,  542. 
Schlitz  v.  Meyer,  615. 
Schloss  V.  Hewlett,  352,  354. 
Schmaling  v.  Thomlinson,  440,  443,  646. 
Schmidt  v.  Thomas,  128.  332. 
Schmueckle  v.  Waters,  341. 
Schneider  v.   Anderson,   109. 
Schneider  v.  Local  Union  No.  60,  351. 


Schneider   v.   Norris,   111. 

Schneider  v.   Staihr,  204. 

Schnell  v.  Nell,   143,  144- 

Schoener  v.  Lissauer,  300. 

Schoenfeld   v.  Brown,   84. 

Schofield  V.  Walker,  306. 

Scholey  v.  Ilalsey,  631. 

Scholey  v.  Mumford,  302. 

School  Directors  v.  Trefethren,  43. 

School  Dist.  No.  1  v.  Dauchy,  591. 

School  DisL  of  Beatrice  v.  Thomas,  440, 

449. 
School  Trustees  v.  Bennett,  591. 
Schooley  v.  Romain,  518. 
Schoonover   v.    Vachon,    119. 
Schorestene  v.  Iselin,  47. 
Schroeder  v.   Fink,   153,  155. 
Schroeder  v.  Loeber,  119. 
Schubart  v.  Coke  Co.,  290. 
Schuff  V.  Ransom,  231. 
Schuler  v.  Myton,  156. 
Schultz  V.  Catlin,  301.  304. 
Schultz  V.  Culbertson,  366. 
Schultz  V.  Noble,   79. 
Schultz  V.   Waldons,  93. 
Schulze-Berge  v.  The  Guildhall,  403. 
Schumaker  v.  Mather,  284. 
Schurmeier  v.  Johnson,  618. 
Schuylkill  Co.  v.  Copley,  247. 
Schwab  V.  Rigby,  332. 
Schwalm   v.   Mclntyre,  002. 
Schwartz  v.  Schwartz,  299,  304. 
Schwa rzbach   v.   Protective   Union,   261, 

267. 
Schweider  v.  I^ng.  164,  616. 
Schwinger  v.  Hickok,  641. 
Scioto  Fire  Brick  Co.  v.  Pond,  252. 
Scobey  v.  Ross,  373. 
Scofield  V.  Railroad  Co.,  360. 
Scoggin  V.  Slater,  93. 
Scotson  V.  Pegg,  160. 
Scott  V.  Avery,  368,  369. 
Scott  V.  Brown,  317,  424. 
Scott  V.  Buchanan,  206,  212. 
Scott  V.  Davis,  35. 
Scott  V.  Fields,  513. 
Scott  V.  Glenn,  111. 
Scott  V.  Littledale,  277. 
Scott  V.  McMillan,  47L 
Scott  V.  Miller,  631. 
Scott  V.   Sadler,  464. 
Scott  V.  Scott,  210. 
Scott  V.  Stetler,  470. 
Scott  V.  White,  87. 
Scott  V.   Whitney,  498. 
Scottish-American  Mortg.  Co.  t.  Dayi*, 

32,  34. 
Scribner    v.    HoIIis,    499. 
Scrimshire  v.  Scrimshire,  433. 
Scroggin  v.  Wood,  279.  286,  488. 
Scudder  v.  Carter,  86,  271. 
Scully  V.  Kirkpatrick,  596,  648. 
Seagraves  v.  Alton,  241. 
Seaman  v.  Aschermann,  117. 
Seaman  v.  Colley,  366. 
Seamans  v.  Temple  Co.,  435. 
Searcy  v.  Hunter,  197,  203.  219. 
Searle  v.  Galbraith,   226. 
Searle  v.  Hill.  119. 


CASKS   CITED 
[Tba  fisures  refer  to  pages] 


717 


Sears  v.   Brink,   lOS. 

Seara  v.  Hicklin,  621. 

Sears  v.   Railroad  Co.,  47. 

Sears  v.  Shafer,  309. 

Sears  v.   Starbird,  482,  628. 

Seaver  v.  Plielps.  229. 

Seavey  v.  Shurick,  500. 

Sebastian  May  Co.  v.  Codd,  547. 

Seccomb  v.  Insurance  Co.,  499. 

Second  Nat.  Bank  v.  Grand  Lodge,  447. 

Secor  V.  Clark,  303. 

Seculovich  v.  Morton,  619. 

Security    Life   &   Annuity   Ca   t.   Cost- 

ner,  409. 
Sedbury  v.  Duffy,  335. 
Seddon  v.  Roseubaum,  99. 
Sedgwick  v.   Stanton,  358. 
Seebold  v.  Tatlie,  601,  G02. 
Seeger  v.  Dutbie,  262. 
Seeiey  v.  Traction  Co.   254,  277. 
Seeley   v.   Welles,   542. 
Seeman  v.   Biemann,   517. 
Seiber  v.   Price,   300. 
Seidenbender    v.    Charles'    Adm'rs,    323, 

420. 
Seigman  v.  Hoffacker,  448,  451. 
Seipel  V.   Insurance  Co.,   651. 
Seipel  V.  Trust  Co.,  564. 
Selden  v.  Myers,  3ll. 
Semmes  v.  City  Fire  Ins.  Co.,  183. 
Semmes  v.  Insurance  Co.,  183,  593. 
Semmes  v.  Worthiugton,  117. 
Semple  v.   Pink,   152. 
Sennett  v.  Shehan,  651. 
Sentance  v.  Pool,  233. 
Senter  v.  Williams,  549. 
Sergeant  v.  Dwyer,  56. 
Sergeant  v.  Stryker,  632. 
Serrill  v.  Wilder,  354. 
Seward  v.  Mitchell,  146. 
Sewell  V,  Sewell,  222. 
Sext  V.  Giese,  88. 

Seymour  v.  Armstrong,  35,  47,  496. 
Seymour  v.  Bridges,  431. 
Seymour  v.  Marlboro,  172. 
Seymour  v.  Marvin,  549. 
Seymour  v.  Minturn,  476,  525. 
Seymour  v.  Oelrichs,   105,  115. 
Seymour  v.  Society,  243. 
Seymour  v.   Van   Slyck,  548. 
Sbackell  v.  Rosier,  319. 
Sbackelton  v.  Sebree,  234. 
Shadburne  v.  Daly,  152. 
Shade  V.  Creviston,  462,  463. 
Shadwell  v.  Shadwell,  143,  160. 
Shady  Hill  Nursery  Co.  v.  Waterer,  35. 
Shafer  v.  Senseman,  381. 
Shaffer  v.  Hahn,  92. 
Shaffer  v.  Mining  Co.,  460. 
Shahan  v.  Swan,  116. 
Shane  v.  Smith,  22,  651. 
Shanks  v.  Whitney,  279. 
Shannon  v.   Baumer,  428. 
Shannon  v.  Hoboken,  461. 
Sharkey  v.  Mansfield,  637. 
Sharp  V.  Carroll,  131. 
Sharp  V.  Thompson,  508. 
Sharpe  v.  Rogers,  lo3. 
Sharpless'  Appeal,  174. 


Shattock  V.  Shattock,  238. 

Shattuck  V.  Watson,  326. 

Shaub  V.  Lancaster,  49. 

Shaw  V.  Andrews,  379. 

Shaw  V.  Ball,  224. 

Shaw  V.  Boyd,  215. 

Shaw  V.  Burney,  174. 

Shaw  V.  Carpenter,  408. 

Shaw  V.  Clark.  345,  422. 

Shaw  V.  Glass  Works,  52. 

Shaw  V.  Graves,  646. 

Shaw  V.  McGregory,  530. 

Shaw  V.  Pratt,  614. 

Shaw  y.   Shaw,  114,  65L 

Shaw  V.  Thompson,  226. 

Shaw  V.  Woodcock,  634. 

Sheahan  v.  Barry,  563. 

Shed  V.  Pierce,  478. 

Sheehy  v.  Adarene,  100. 

Sheehy  v.  Fulton,  102. 

Sheeren  v.  Moses,  568. 

Sheets  v.  Bray,   225. 

Sheets  v.   Sweeny,  92. 

Sheffield  Canal  Co.  v.  Sheffield  &  R.  Ry. 

Co.,  45. 
Sheffield  Furnace  Co.  v.  Coke  Co.,  149. 
Shelby  v.  Railroad  Co.,  71. 
Sheldon  v.  Capron,  253. 
Sheldon  v.  Davidson,  279,  280. 
Sheldon  v.  Haxtun,  340. 
Slielly  V.  Mikkelson,  568. 
Sbelton  v.  Aultman  &  Taylor  Co.,  338. 
Sbelton  v.  Ellis,  278. 
Shenandoah    Valley   R.   Co.   v.    Dunlop, 

71,  149. 
Sheneberger    v.    Union    Cent.    Life    Ins. 

Co.,  246. 
Shenk  v.  Mingle,  377. 
Shenk  v.  Phelps,  424. 
Shepard  v.  Carpenter,  36,  52. 
Shepard  v.  Gaslight  Co.,  609. 
Shepard  v.  Rhodes,  136,  143,  171,  174. 
Shepherd  v.  Busch,  547. 
Shepherd  v.  Jenkins,  587. 
Shepherd  v.  Pressey,  128. 
Shepherd  v.  Young,  646. 
Sheppard  v.  Bridges,  446. 
Sheppard    v.    Rockingham    Power    Co., 

379. 
Sheppey  v.  Stevens,  350,  381. 
Sherburne  v.  Shaw,  104. 
Sherley  v.  Peehl,  45. 
Sherley  v.  Riggs,  370. 
Sherman  v.  Blackman,  336. 
Sherman  v.  Brandt,  112. 
Sherman  v.  Burton,  350,  365. 
Sherman  v.  Kitsmiiler,  54. 
Sherman  v.  MuUoy,  509. 
Sherman  v.  Sherman,  304. 
Sherman  v.  Wilder,  414. 
Sherwin  v.  Brigham,  157. 
Sherwin  v.   Fletcher,   148. 
Sherwin  v.  Sanders,  175. 
Sherwood  v.  Roundtree,  339. 
Sherwood   v.    Stone,   87. 
Sherwood  v.  Walker,  255. 
Shevlin  v.  Shevlin,  293,  308. 
Shindler  v.   Houston,  128. 
Shipley  v.  Reasoner,  341, 


718 


CASES    CITED 
[Tbe  flgurea  refer  to  pages] 


Shipley  v.   Smith,  186,  216. 

Shipman  v,  Hoiton,  205. 

Shipman  v.  Seymuur,  274. 

Sbipman  v.  Straitsville  Cent.  Min.  Co., 
480. 

Shipp  V.  McKee,  207. 

Shippey  v.  Henderson,  174. 

Siiippy  V.   Eastwood,  330. 

Shirli  V.   Shultz,  205,  206.  215. 

Shirley  v.  Healds,  473. 

Shirts  V.  Overjohn,  249. 

Shively  v.  Black.  108. 

Shook  V.  Puritan  Mfg.  Co.,  285. 

Shook  V.  Vanmater,  87. 

Short  V.   Insurance  Co.,  267. 

Short  V.  Mining  Co.,  326. 

Short  V.  Stone,  563. 

Short  V.  Stotts,  89. 

Sboulters  v.  Allen,  230. 

Shreveport  Ice  &  Brewing  Co.  t.  Man- 
del  Bros.,  594. 

Shrimpton  &   Sons  v.   Dworsky,   125. 

Shrimpton  &  Sons  v.  Phillbrick,  285. 

Shriner  v.  Lamborn.  463. 

Shropshire  v.  Burns,  210. 

Shubart's  Estate,  In  re,  21. 

Shuder  v.  Newby,  153. 

Shuey  v.  U.  S.,  44,  48. 

Shufeldt  V.  Pease.  296. 

Shultz  V.  Johnson.  648. 

Shultz  V.  Johnson's  Adm'r,  596,  597. 

Shumate  v.  Farlow,  99. 

Sibley  v.  Felton,  36,  52. 

Sibley  v.  Holcomb,  247. 

Sidenham  v.  Worlinston,  171. 

Siebold  v.  Davis,  34. 

Siedenbender  v.  Charles'  Adm'rs,  322, 
323. 

Siegel,  Cooper  &  Co.  v.  Eaton  &  Prince 
Co.,  595. 

Silander  v.  Gronna,  256. 

Silberman  v.  Fretz,  569. 

Siler  V.  Gray,  597. 

Silkman  Lumber  Co.  v.  Hunholz,  129. 

Silsby  V.  Frost,  85. 

Silsby  Mfg.  Co.  v.  Chico,  542. 

Silver  v.  (iraves,  56. 

Silvers  v.  I'otters,  488. 

Silverthorn  v.   Wylie,  172. 

Simar  v.   Canaday,  279. 

Simmons  v.  Clark,  615. 

Simmons  v.  Green,  576. 

Simmons  v.   Hamilton,  615. 

Simmons  Medicine  Co.  v.  Simmons,  392. 

Simon   v.  Garlitz,  380. 

Simon  v.  Johnson,  498. 

Simon  v.  Rubber  Shoe  Co.,  286,  292. 

Simons  v.  New  Britain  Trust  Co.,  120. 

Simonton  v.  Bacon,  224. 

Simpson  Centenary  College  v.  Tattle, 
148. 

Simpson  v.  Commonwealth,  113. 

Simpson  v.  Crippin,  570,  571. 

Simpson  v.  Dix,  493. 

Simpson  v.  Evans,   157,  337. 

Simpson  v.  Harris,  87. 

Simpson  v.  Hotel  Co.,  242. 

Simpson  v.  Krumdick,  127. 

Simpson  v.  Nichols.  333. 


Simpson  v.  Prudential  Ins.  Co..  216. 

Simpson  v.  Prudential  Ins.  Co.  of  Amer- 
ica. 195. 

Simpson  v.  Railway  Co.,  611. 

Sims  V.  Clark,  480. 

Sims  V.  Everhardt,  206,  221. 

Sims  V.  Ferrill,  281. 

Sims  V.  Hutchins,  114.  651. 

Simson  v.   Brown,  449. 

Sinclair  v.  Learned,  555. 

Singer  v.  Schilling,  296. 

Singer  Mfg.  Co.  v.  Draper,  424. 

Singer  Mfg.  Co.  v.  Sammons,  296. 

Singerly  v.  Thayer,  542. 

Sinj;leton  v.  Thomas.  163. 

Singstack's  Ex'rs  v.  Harding.  112.  123. 

Sinsheimer  v.  Skinner  Mfg.  Co.,  477. 

Sioux  City  Stock-Yards  Co.  v.  Pack- 
ing Co.,  526,  616. 

Sisson  V.   Baltimore,   154,  165. 

Sivers  v.   Sivers,  492,  619. 

Sizer  v.  Daniels,  363. 

Skeate  v.  Beale,  302. 

Skidmore  v.  Bradford,  142. 

Skiff  V.  Johnson,  415. 

Skinker  v.  Armstrong,  86. 

Skinner  v.  Henderson,  426. 

Skinner  v.  Maxwell,  213. 

Skinner  v.  Mining  Co.,  157. 

Skinner  v.  Somes,  457. 

Skipper  v.  Stokes,  460. 

Skobis  V.  Ferge,  460,  463. 

Skrainka  v.  Scharringhausen,  396. 

Slade  V.  Elevator  Co.,  165. 

Slade  V.  Mutrie,  525. 

Slade  V.   Rhodes,  373. 

Slade's  Case,  625. 

Slagle  &  Co.  V.  Goodnow,  275. 

Slater  v.  Emerson,  567. 

Slater  v.  Jones,  166. 

Slater  v.  Magraw,  520. 

Slater  v.  Railroad  Co.,  537. 

Slaughter  v.  Davenport,  478. 

Slaughter  v.  Gerson,  260. 

Slaughter's  Adm'r  v.   Gerson,  284. 

Slayton  v.  Barry,  222. 

Sleeper  v.  Davis,  296. 

Sleght  v.   Hartshorne,  408. 

Sleigh  V.  Sleigh    029. 

Slingerland  v.  Sllngerland,  116w 

Slingsby's  Case,  481. 

Sloan  V.  Davis,  367. 

Sloan  V.   Williams,  458. 

Sloan  V.  Wilson.  108. 

Slocum  V.  Wooley.  302. 

Sloman  v.  Cox,  605. 

Small  V.  Lowrey,  365. 

Small  V.  Railroad  Co.,  375. 

Small  V.  Schaefer,  448. 

Smalley  v.  Greene,  99,  392. 

Smart  v.  Gale,  041. 

Smeed  v.  Foord,  609. 

Smiley  v.  Bell,  457. 

Smith  V.  Algar,  141. 

Smith  V.  Alker,  598. 

Smith  V.  Applegate.  362, 

Smith  V.  Arthur,  71. 

Smith  V.  Atwood,  301. 

Smith  V.  Bank.  491,  503, 


CASKS  CITBD 
[The  figure*  refer  to  pages] 


719 


Smith  y.  Banking  Co.,  5G0. 

Smith  V.  Bartholomew,  525. 

Smith  V.  Bates  Macb.  Co.,  457. 

Smith  V.  Bean.  333. 

Smith  V.  Beatty,  273. 

Smith  V.  Becker,  184. 

Smith   V.   Bettger,   5-i7. 

Smith  V.  Blachley,  366. 

Smith  V.  Black,  617. 

Smith  V.  Bradley,  79. 

Smith  V.  Brady,  539. 

Smith  V,  Bouck,  126. 

Smith  V.  Bromley,  429,  430. 

Smith  V.  Brown,  390. 

Smith  V.  Bryan,  94. 

Smith  V.  Burnham,  70. 

Smith  V.  Coker,   153. 

Smith  V.   Countryman,   276. 

Smith  V.  Cuff.  429.  629. 

Smith  V.    David    R.  Crockett   Co.,  378, 

430. 
Smith  V.  Davis,  269. 
Smith  V.  Delaney,  88. 
Smith  V.  Du  Bose,  350. 
Smith  V.  Dunham,  603. 
Smith  V.  Edwards,  29. 
Smith  V.  Exchange  Bank,  87. 
Smith  V.  Farra,  154,  155. 
Smith  V.  Fisher,  12$. 
Smith  V.  Gowdy,  52. 
Smith  V.  Greenlee,  318. 
Smith  V.  Hale,  581. 
Smith  V.  Harrison,  470. 
Smith  V.  Hartsell.  370.  374. 
Smith  V.  Hess,  497. 
Smith  V.  Hornback,  291. 
Smith  V,  Hudson,  127. 
Smith  V.  Hughes,  251.  276.  278. 
Smith  V.  Humphreys,  317,  378. 
Smith  V.  Hunt,  491. 
Smith  V.  Ide,  131. 
Smith  V.  Ingram,  18. 
Smith  V.  Jernigan,  632. 
Smith  V.  Jordan,  563. 
Smith  V.  Kay,  310. 
Smith  V.  Kittridge,  135. 
Smith  V.  Lathrop.  618. 
Smith  V.  Leady,  387. 
Smith  V.  Lewis,  561,  576. 
Smith  V.  Lilley,  492. 
Smith  V.  Livingston,  297. 
Smith  V.  Loyd,  551. 
Smith  V.  Mace,  605. 
Smith  V.  Mayo,  203.  208. 
Smith  V.  Miller,  476. 
Smith  V.  MoUeson,  510. 
Smith  V.  Monteitb,  152. 
Smith  V.  Morse,  149. 
Smith  V,  Nichols,  61. 
Smith  V.  Nortbrup,  108. 
Smith  V.  Ocean  Castle  No.  11,  369. 
Smith  V.  Phillips,  161. 
Smith  V.  Pierce,  116. 
Smith  V.  Plomer,   236. 
Smith  V.  Porter,  68. 
Smith  V.  Preston's  Estate,  596. 
Smith  V.  Price.  374. 
Smith  V.  Property  Co.,  260. 
Smith  V.  Railroad  Co.,  369,  537,  609. 


Smith  V.  Railway  Co.,  329. 

Smith  V.  Richards,  268.  270.  377. 

Smith  V.  Robertson.  322,  323,  326. 

Smith  V.  Sherman,  474. 

Smith  V,   Silvers,  338. 

Smith  V.  Smith,  225,  274,  285,  342, 
463. 

Smith  V.  Steely,  366. 

Smith  V.  Surman,  94. 

Smith  V.  Thompson,  238. 

Smith  V,   Townsend,   378. 

Smith  V.  Ulman,  319. 

Smith  V.  U.  S.,  603. 

Smith  V.   Ware,   146. 

Smith  V.  Watson,  330.  523,  529. 

Smith  V.  Weaver,  51,  149. 

Smith  V.  Wbilden,  157,  353. 

Smith  V.  Wilcox,  329. 

Smith  V.  Williams,  490. 

Smith  V.    Williamson,    235. 

Smith  V,  Wilson,  496. 

Smith  V.  Wood,  73. 

Smith  V.  Wooding,  650. 

Smith  V.  Woodward,  520. 

Smith  V.  Wright,  497. 

Smith  Premier  Typewriter  Co.  v.  May- 
hew,  366. 

Smith's  Adm'r  v.  Smith,  293. 

Smith's  Appeal,  111,  387,  388,  409. 

Smith's  Committee  v.  Forsythe,  224, 
226,  229. 

Smith-Wogan  Hardware  &  Implement 
Co.  V.  Jos.  W.  Moon  Buggy  Co.,  533. 

Smits  V.  Hogan,  371. 

Smock  V.  Pierson,  589. 

Smoyer  v.  Roth,  54. 

SmuU  V.  Jones,  319. 

Smyley  v.  Reese,  308. 

Smythe  v.  Allen,  339. 

Smytbe's  Estate  v.  Evans,  378. 

Snell  V.  Bray,  143. 

Snell  V.   Cottingham,  610. 

Snell  V.  Insurance  Co.,  257,  501. 

Snelson  v.  State,  640. 

Snider  v.  Thrall,  129. 

Snoddy  v.  Bank,  422. 

Suodgrass  v.  Cabiness,  473. 

Snook  v.  Watts.  228. 

Snow  V.  Judson,  287. 

Snow  V.  Wheeler.  399. 

Snyder  v.  Church,  374. 

Snyder  v.  Insurance  Co.,  508. 

Snyder  v.  Jones,  73. 

Snyder  v.  Stribling,  514. 

Sobey  v.  Brisbee,  100. 

Solenberger  v.   Gilbert's  Adm'r,  490. 

Soles  V.  Ilickman,  106. 

Soley  &  Sons  v.  Jones,  591. 

Solinger  v.  Earle,  429. 

Solomon  v.  Dreschler,  327. 

Somerby  v.  Buntin,  126. 

Somers  v.  Pumphrey,  225. 

Somes  V.  Skinner,  224. 

Sondheim  v.  Gilbert,  422,  433. 

Soper  V.  Peck,  248. 

Sornborger  v.  Sanford,  305. 

Sorsbie  v.  Park,  521. 

Soubegan  Nat.  Bank  v.  Wallace.  426. 

Soule  V.  Bouney,  30L 


720 


CASES   CITED 
[The  figures  refer  to  pages] 


South    Baltimore  Co.  v.   Muhlbach,  93. 
South  Chicago  City  Ry.  Co.  v.  Ky.  Co., 

358 
South'  Dakota  v.  North  Carolina,  180. 
South  Milwaukee  Boulevard  Heights  Co. 

V.  Harte,  284. 
South  Texas  Telephone  Co.  v.  Hunting- 
ton, 536. 
Southard  v.  Boyd,  357. 
Southard  v.  Rexford,  610. 
Southcombe  v.  Bishop,  619. 
Southern  Development  Co.  v.  Silva,  279, 

282. 
Southern  Exp.  Co.  v.  Dufifey,  304. 
Southern  Express   Co.   v.  Gibbs,  436. 
Southern  Exp.  Co.  v.  Glenn,  537. 
Southern  Life  Ins.  &  Trust  Co.  v.  Cole, 

126. 
Southern  Life  Ins.  &  Trust  Co.  v.  Lanier, 

242. 
Southern  Loan   &  Trust  Co.  v.   Gissen- 

daner,  280. 
Southern  I'ac.  Co.  v.  Well  Works,  586. 
Southwick  V.  Bank,  297. 
Soutier  v.  Kellerman,  496. 
Sowers  v.  Parker    282. 
Spackman      v.      Plumstead      Board      of 

Works,  369. 
Spader  v.  Manufacturing  Co.,  594. 
Spaids  V.  Barrett,  302. 
Spain  V.  Brent,  465. 
Spalding  v.  Ewing,  355. 
Spalding  v.  Rosa,  596,  648. 
Spangler  v.   Danforth.   103. 
Sparks  v.  Pittsburgh  Co.,  36. 
Sparling  v.  Marks,  582. 
Sparling   v.    United    States    Sugar    Co., 

374. 
Spaulding  v.  Crawford,  303. 
Speake  v.  U.  S.,  605. 
Speed  V.  Hollingsworth,  283. 
Spence  v.  Ham,  540. 
Spence  v.  Harvey,  357. 
Spence  v.  Healey,  531. 
Spencer  v.  Brockway,  ISO. 
Spencer  v.  Collins,  217. 
Spencer  v.  Harding.  47,  51. 
Spencer  v.  Parry,  629. 
Spencer  v.  Tilden,  337. 
Spencer  v.  Towles,  139.  447. 
Spencer's  Appeal,   308. 
Spencer's  Case.  469,  470. 
Speyer  v.  Desjardins,  93. 
Spicer  v.  Earl.  217. 
Spiller  V.  Skating  Rink,  445. 
Spinks  V.  Davis,  379. 
Spinney  v.  Hill.  119. 
Spinning  v.  Sullivan,  463. 
Spitze  v.  Railroad  Co.,  162. 
Spitzmiller  v.   Fisher,  22. 
Splane  v.  Commonwealth,  329. 
Spragg  V.  Hammond,  635. 
Sprague  v.  Haines,  119. 
Sprague  v.  Hazenwinkle,  551. 
Sprague  v.  Hosie,  126. 
Sprague  Electric  Co.  v.  Board  of  Com'rs, 

510. 
Sprankle  v.  Trulove.  453. 
Spring  Co.  v.  Knowlton,  426. 


Springer  v.   Bien,   119. 

Sprye  v.  Porter,  373. 

Spurgeon  v.  McElwain,  .327. 

Spurr  V.  Home  Ins.  Co.,  501. 

Spycher  v.  Werner,  529. 

Squier  v.  HydlifE,  194.  217. 

Staat  v.  Evans,  632. 

Stabler  v.  Cowman,  60,  63. 

Stacey  v.   Kemp,  332. 

Stackpole  v.  Symonds,  331. 

Stacy   V.   Cook,   163. 

Stacy  V.  Foss.  426. 

Stafford  v.  Bacon,  171,  174. 

Stafford  v.  Roof,  202,  204,  205,  2L3. 

Stagg  V.  Compton,  3,  35,  50. 

Staines  v.  Shore,  319. 

Stallings  v.  Gottschalk,  492. 

Stall's  Estate,  In  re,  433. 

Stamford  Bank  v.  Benedict,  550. 

Stamper  v.  Temple,  49,  50,  353. 

Standard  Furniture  Co.  v.  Van  Alstine, 

414. 
Standard  Gaslight  Co.  v.  Wood,  507. 
Standard  Lumber  Co.  v.  Butler  Ice  Co., 

380. 
Standard  Mfg.  Co.  v.  Slot,  247. 
Standard  Oil  Co.  v.  Murray,  443. 
Standard   Oil  Co.  of  Xew  Jersey  v.  U. 

S.,  393,  .395. 
Standard  Supply  Co.  v.  Person,  152. 
Stanford  v.  McGill,   56L 
Stange  v.  Wilson.  512. 
Stanley  v.  Dowdeswell,  36. 
Stanley  v.  Jones,  373. 
Stansdeld  v.  Kunz.  426. 
Stanton  v.  Allen,  419. 
Stanton  v.  Erabrey,  374. 
Stanton  v.  Hughes,  295. 
Stanton  v.  Willsun,   198. 
Staples  V.   Nott,  433. 
Staples  V.  Wellinuton,  225. 
Starbird   v.   Cranston,  450,   451. 
Star  Glass  Co.  v.  Morey,  19. 
Stark  V.  Parker,  579.  , 

Stark  V.  Sperry.  338. 
Starkie  v.  Perry,  20. 
Starr  v.  Bennett,  256,  281. 
Starr  v.  Watkins,  215. 
Starr  v.   Wright,  189. 
Startup  V.  Macdonald,  543,  552. 
State  V.  Andriano,  182. 
State  V.  Associated  Press,  397. 
State  V.  Baker,  135. 
State  V.  Baldwin,  384. 
State  V.  Board,  407,  409,  410. 
State  V.    Board    of    Public    Service    of 

Columbus,  25. 
State  V.  Board  of  State  Prison  Com'rs, 

35. 
State  V.  Boneil,  347. 
State  V.   Brantley,  303. 
State  V.  Burkeholder.  ISO. 
State  V.  Carver,  366.  367. 
State  V.  Cass,  279,  286. 
State  V.  Chandler,  476,  481. 
State  V.  Clarke,  186. 
State  V.  Corlies,   021. 
State  V.  Dalton,  347. 
State  V.  Findley,  406,  409. 


CASES   CITED 
rrhe  flgurea  refer  to  pages] 


721 


State  V.  Glidden,  400. 

State  V.  Gott,  72. 

State  V.  Grant,  180. 

State  V.  Howard,  196. 

State  V.   Investment   Co.,   347. 

State  V.  James,  330. 

State  V.  Judge,  328. 

State  V.  McBee,  330. 

State  V.  Moren,  347. 

State  V.  Nebraska  Home  Co.,  347,  348, 

State  T.  New  Orleans,  624,  626. 

State  V.  Ohmer,  330. 

State  V.  Oil  Co.,  395. 

State  V.   O'Rourke,  328. 

State  V.  Powell,  328. 

State  V.    Railroad    Co..    360,    425,    567, 
594. 

State  V.  Reigart,  136. 

State  V.    Schuler,  330. 

State  V.  Scougal,  321. 

State  V.  Sooy,  276. 

State  V.  Sopher,  330. 

State  V.  Stewart.  400. 

State  V.  Such,  301. 

State  V.  Thatcher,  68. 

State  V.  Thompson,  63. 

State  V.  United  States  Fidelity  &  Guar- 
anty Co.,  551. 

State  V,  Van  Pelt,  605. 

State  V,  Wallis,  489. 

State  V.  Weatherwax,  188. 

State  V.    Williamson,   354. 

State  V.   Wilson,  407. 

State  V.  Worthington's  Ex'rs,  592. 

State  Bank  v.  Hastings,  354. 

State  Bank  v.  McCoy,  235. 

State  Nat.  Bank  v.  Bennett,  422. 

State  Nat  Bank  v.  U.   S.,  636. 

State  ex  rel.  Thayer  v.  Boyd,  182. 

Stavers  v.  Curling.  566,  583. 

Stead  V.  Dawber,  79. 

Steadman  v.  Guthrie,  109. 

Steamboat  Albatross  v.  Wayne,  495. 

Stearns  v.  Dillingham,  631. 

Stearns  v.  Felker.  373.  375. 

Stearns  v.  Hall,  80,  534. 

Stearns  v.  Johnson,  164. 

Stebbins   v.  Bruce,  462. 

Stebbins  v.  Duncan.  486. 

Stebbins  v.  Niles,  301. 

Stebbins  v.  Palmer,  474. 

Stebbins  v.    Smith.  81. 

Steeds  v.    Steeds,  532. 

Steele  v.  Hobbs,  59U. 

Steele  v.  Lowry,  66. 

Steele  v.   Steele,  142. 

Steene  v.  Aylesworth,  448. 

Stees  V.  Leonard,  591. 

StefFes  v.  Lemke.  480. 

Stein  V.  Archibald,  508. 

Stein   V.   Swensen,  339. 

Steinheuer  v.  Witman,  589. 

Steinman  v.   Magnus,  163. 

Steinmeyer  v.  Schroeppel,  245,  255. 

Stembridge  v.   Stembridse's  Adm'r,  149. 

Stensgaard  v.  Smithy  26,  40. 

Stei)ljens  v.  Board,  630. 

Stephens  v.   Davis,  601. 

Stephens  v.  Railway  Co.,  437. 
Clark  Cont.(3u  Ed.) — 46 


Stephenson  v.  Cady,  573   576. 

Stephenson  v.   Elliott,  450. 

Stephenson  v.  Insurance  Co.,  369. 

Stepney  v.  Lloyd,  300. 

Sterling  v.  Ryan^  529. 

Sterling  v.  Sinnickson    381. 

Stern  v.  Meikleham,  196. 

Sternberger  v.   Gowdy,  551. 

Stettauer  v.   Hamlin,  503,  507. 

Stevens  v.   Beals,  237. 

Stevens  v.  Benning,  458. 

Stevens  v.  Brennan,  296. 

Stevens  v.   Catlin,   477. 

Stevens   v.   Cincinnati    Times-Star    Co.. 

347. 
Stevens  v.  Coon,  167. 
Stevens  v.   Flannagan,  451. 
Stevens  v.  Gourley,  327. 
Stevens  v.  Gregg,  436. 
Stevens  v.  Johnson,  588. 
Stevens  v.  Lee,  119. 
Stevens  v.  Ludlum,  271,  287. 
Stevens  v.  Parish,  236. 
Stevens  v.  Pierce,  294. 
Stevens  v.  Warren,  343. 
Stevenson  v.  Crapnell,  68. 
Stevenson  v.  Ewing,  320. 
Stevenson  v.  McLean,  40,  43. 
Stevenson  v.  Marble,  290. 
Stewart  v.  Cattle-Ranch  Co.,  276. 
Stewart  v.  Eddowes,  112. 
Stewart  v.  Emerson,  274. 
Stewart  v.  Hidden,  525. 
Stewart  v.  Hopkins,  548. 
Stewart  v.  Jerome,  87. 
Stewart  v.  Keith,  548. 
Stewart  v.  Keteltas,  527. 
Stewart  v.  Langston.  166. 
Stewart  v.  Loring,  648. 
Stewart  v.  Marvel,  512, 
Stewart  v.  Petree,  337, 
Stewart  v.  Railroad  Co.,  409,  453. 
Stewart  v.  Railway  Co.,  409. 
Stewart  v.  Redditt,  225. 
Stewart  v.  Schall,  430. 
Stewart    v.    Stearns   &    Culver    Lumber 

Co.,  388. 
Stewart  v.  Stone,  596.  598. 
Stewart  v.  Thayer,  412,  425. 
Stewart  v.  Ticonic  Nat.  Bank,  246,  254. 
Stewart  v.  Trustees,  448. 
Stewart  v.  Wright.  428. 
Stewart  Paper  Mfg.  Co.  v.  Rau,  547. 
Stewartson   v.    Lothrop,   327. 
Stickley  v.  Mobile  Ins.  Co.,  77. 
Stiles  V.  McClellan,  111. 
Stiles  V.  Probst,  605. 
Stilk  V.  Meyrick.  157. 
Stillman  v.  Northnip,  339. 
Stimson  v.  Helps.  2So. 
Stines  v.  Dorman,  472. 
Stinson  v.  Anderson,  67. 
Stitt  V.  Huidekoper,  27,  4L 
Stitzel  V.  Farley,  229. 
Stix  V.  Roulston,  523. 
Stock  V.  Stoltz,  22. 
Stockett  V.  Watkins'  Adra'rs,  19.  634, 
Stockham  v.  Stockham,  ;U. 
Stocks  V.  Dobsou,  463,  465. 


722 


CASES   CITED 
[The  figures  refer  to  pages] 


Stockton  V.  Turner,  505. 

Stoddard  v.  Ham,  251. 

Stoddard  v.  Martin,  342. 

Stoddard  v.  Mix,  370. 

Stoddard  v.  Penniman,  605. 

Stodhard  v.  Lee,  542. 

Stokes  V.  Anderson,  383. 

Stokes  V.  Baars,  571. 

Stone  V.  Browning,  132. 

Stone  V.  Chamberlin,  530. 

Stone  T.  Covell.  285. 

Stone  T.  Dennison,  79. 

Stone  V.  Denny,  285. 

Stone  V.  Graves,  330. 

Stone  V.  Harmon,  39. 

Stone  V.  Hooker,  412. 

Stone  V.  Marsh,  634. 

Stone  V.  Seymour,  548,  55L 

Stone  V.  Weiller,  299. 

Stone  V.  White,  603. 

Stone  V.  Wilbern,  224. 

Stoneburner  v.  Motley,  170. 

Stoney  v.  Insurance  Co.,  266. 

Stoney    Creek    Woolen   Co.    v.    Smalley. 

283. 
Storer  v.  Gordon,  537. 
Storrs  V.   Barker,  256, 
Storrs  V.  Hospital    374. 
Story  V.  Elliott,  328. 
Story  V.  Gammell,  285. 
Story  V.  Solomon,  346. 
Story  V.  Storv,  22. 
Stotts  V.  Leonhard,  212. 
Stoudenmire  v.   Harper.   18. 
Stouffer  V.  Latshaw,  301. 
Stout  V,  Ennis,  351,  303. 
Stoutenburg  v.  Lybrand,  382. 
Stout's  Adm'r  v.  Royston,  119. 
Stover  V.  Duren,  620. 
Stover  V.   Mitchell,  303. 
Stow  V.  Russell,  527. 
Stowell  V.  Chamberlain,  619. 
Stowers  v.  Hollis,  97,  188,  189. 
Strachan  v.  Stock  Exchange,  426. 
Strait  V.   Harrow  Co..  395.  398. 
Strand  v.  Griffith,  283. 
Strasburg  R.  Co.  v.  Echternacht,  27. 
Stray  v.  Russell,  642. 
Streator  v.  Paxton,  480. 
Streeper  v.  Williams,  517. 
Street  v.  Blay,  581,  634. 
Street  v.   Goodale,   449. 
Street  v.  Rigby,  368. 
Strehl  V.  D'Evers,  101. 
Streichen  v.  Fehleisen,  520. 
Strickland  v.  Graybill,  282. 
Strickland  v.  Turner,  252. 
Strobridge    Lithographing    Co.    v.    Ran 

dall,  52. 
Strong  V.  Clem,  466. 
Strong  V.  Foote,  193. 
Strong  V.  Grannis,  303. 
Strong  V.  Lane,  253. 
Strong  V,  Lawrence,  61. 
Strong  V.  Railroad  Co.,  497,  499. 
Strong  V.  Sheffield,  152. 
Strong  V.  Strong,  290,  293. 
Strong  V.  Trowbridge,  52. 


Strong  &  Trowbridge  Co.  v.  H.  Barra  &. 
Co.,  35,  52. 

Strother's  Adm'r  v.  Butler,  648. 

Stroud  V.  Smith,  352. 

Stuart  V.  Railroad  Co.,  27. 

Stuart  V.  Sears,  637,  638. 

Stuber  v.  Schack,  157. 

Studley  v.  Ballard,  158. 

Studley  v.  Barth,  84. 

Studwell  V.  Shapter,  221. 

Stuht  V.   Sweesy,  172. 

Sturges  V.  Robbins,  18. 

Sturm  V.  Boker,  510,  535. 

Struthers  v.  Drexel,  334. 

Sturtevant  v.  Sturtevant,  306. 

Styles  V.  F.  R.  Long  Co.,  451. 

Suber  v.   Chandler,  61. 

Suffell  V.  Bank,   600,  601. 

Sugart  V.  Mays,  498. 
Sullivan  v.  Association,  334. 
Sullivan  v.  Flynn,  229. 
Sullivan  v.  Horgan,  407. 
Sullivan  v.  Latimer,  51,  64. 
Sullivan  v.  O'Neal,  117. 
Sullivan  v.  Railroad  Co.,  330. 
Sullivan  V.  Rudisill,  603,  605. 
Sullivan  v.   Sullivan,  128,  175    432 
Sulsby  Mfg.  Co.  v.  Chico,  542. 
Summers  v.  Hibbard,  Spencer,  Bartlett 

&  Co.,  591. 
Sumner  v.  Jones,  332. 
Sumner  v.  Summers,  407. 
Sunderland  v.  Bell,  589. 
Sunflower  Lumber  Co.  v.  Turner  Supply 

Sun    Printing   &   Pub.   Ass'n   v.    Moore 

517,  518. 
Supreme   Lodge  Knights  and   Ladies  of 

Honor  v.  Portingall,  479. 
Supreme   Lodge  of  the  Order  of   Select 

Friends  v.  Raymond,  369. 
Surles  v.  Pipkin,  226. 
Susquehanna    Fertilizer    Co.    v.    White, 

Sussex  I'eer'age  Case,  323. 

Sutch's  Estate,  In  re,  136. 

Sutro  V.  Rhodes,  587. 

Sutton  V.  Beckwith,  504. 

Sutton  V.  Grey,  88. 

Sutton  V.  Head,  387,  388. 

Sutton  V.  Heinzle,  197. 

Sutton  V.  Morgan,  283. 

Sutton  V.  Warren,  433. 

Suydam  v.  Jones,  469,  470. 

Suydam  v.  Westfall,  338. 

Swaboda  v.  Throgmorton-Bruce  Co.    84 

Swain  v.  Burnette,  113,  116. 

Swain  v.  Schieffelin,  609,  611. 

Swain  v.  Seamens,  79,  533,  534. 

Swales  V.  Jackson,  116. 

Swan  V.  Drury,  576. 

Swan  V.  Nesmith,  87. 

Swann  v.  Swann,  328,  329,  433. 

Svvanson  v.  Kirby,  390. 

Swanstrom  v.  Balstad,  338. 

Swanzey  v.  Moore,  79. 

Swartwood  v.  Chance,  225. 

Swartwout  v.  Railroad  Co.,  359. 

Swasey  t.  Vanderheyden'g  Adm'r,  199. 


CASKS   CITED 
[The  figures  refer  to  pages] 


72a 


Swayne  v.  Riddle,  335. 
Swayze  v.  Hull,  363. 
Sweatland  v.  Telegraph  Co.,  405. 
Sweeney  v.  Insurance  Co.,  344. 
Sweeney  v.  McLeod,  355. 
Sweeney  v.  Thomason,  496. 
Sweeney  v.  U.  S.,  577. 
Sweet  V.  Lumber  Co.,  96. 
Sweigart  v.   Berk,  477. 
Sweney  v.  Davidson,  279. 
Swift  V.  Bennett,  197. 
Swift  Iron  Works  v.  Dewey,  495. 
Swift  &  Co.  V.  U.  S.,^  635. 
Swiney  v.  Swiney,  6b. 
Swisshelm's  Appeal,  30S. 
Sv/itzer  v.  Noffsinger,  461,  463. 
Syers  v.  Jonas,  581. 
Sykes  v.  Chadwick,  142. 
Sykes  v.  St.  Cloud,  584. 
Sylvester  v.   Henrich,  286. 
Sylvester  v.  Swan,  336. 
Synge  v.    Synge,   563. 


Tacoma  Coal  Co.  v.  Bradley,  585. 

Taft  V.   Sergeant,  208. 

Taggart  v.  Tevanny,    119. 

Talbott  V.  English,  617. 

Talbott  V.  Stemmons'  E'x'r,  142. 

Talcott  V.  Henderson,  274,  275. 

Tallman  v.  Coffin,  469. 

Taliman  v.  Franklin,  107. 

Talmage  v.  Pell,  414. 

Tamplin  v.  Jones,  278. 

Tanner  v.  Merrill,  164. 

Tansley  v.  Turner,  130. 

Tapley  v.  Tapley,  298. 

Tardeveau  v.  Smith's  EJx'r,  334. 

Tarrabochia    v.    Hickie,    262,    574,    5S3. 

Tasker  v.  Bartlett,  64. 

Tatam  v.  Reeve,  431. 

Tatlock  V.   Harris,  529. 

Tatterson  v.  Manufacturing  Co.,  538. 

Tatum  V.  Coast  Lumber  Co.,  245,   255. 

Tatum  V.  Kelley,  415. 

Tayler  v.  Waters,  95. 

Tayloe  v.  Insurance  Co..  31,  32,  38,  42. 

Tayloe  v.  Sandiford.  514,   516,  548. 

Taylor,  Ex  parte,  217. 

Taylor  v.  Allen,  103.  107. 

Taylor  v.  Atchison,  249. 

Taylor  v.   Baldwin,  512. 

Taylor  v.   Bemiss,  374. 

Taylor  v.  Best,  181. 

Taylor  v.  Blanchard.  388. 

Taylor  v.  Bowers,  4'2G. 

Taylor  v.  Brewer,  55. 

Taylor  v.  Caldwell,  595.  596. 

Taylor  v.  Carpenter,  182. 

Taylor  v.  Cottrell,  .300,  301. 

Taylor  v.  Deseve,  98. 

Taylor  v.  Fleckenstein,  285. 

Taylor  v.  Fleet,  254. 

Taylor  v.  Ford.  254. 

Taylor  v.  Gas  Co.,  326. 

Taylor  v.  Hall,  18(i. 

Taylor  v.  Hare,  612. 

Taylor  v.  Hiestand,  337. 


Taylor  v.  Higgins,  630. 

Taylor  v.  Laird,  23. 

Taylor  v.  Larkin,  618. 

Taylor  v.   Longworth,  579. 

Taylor  v.  Newspaper  Co.,  518. 

Taylor  v.  Palmer,  459. 

Taylor  v.  Portington,  55. 

Taylor  v.  Pratt,  lOS. 

Taylor  v.  Railroad  Co.,  553. 

Taylor  v.   Rennie,  38. 

Taylor  v.  Ross,  109. 

Taylor  v.  Short,  293. 

Taylor  v.  Smith,  110,  128. 

Taylor  v.   Spears,  637. 

Taylor  v.  Taylor,  307,  447,  477. 

Taylor  v.  Turley,  503. 

Taylor  v.  Weeks,  154. 

Taylor  v.  Williams,  134. 

Taylor  v.  Young.  331. 

Taylor  &  Co.'s   Estate,   In  re,  344,  346. 

Tayraon  v.  Mitchell,  271. 

Teachout  v.  Van  Hoesen,  282.  294, 

Teal  v.  Bilby,  527.  533,  577. 

Teal  V.  Spangler,  547. 

Teass  v.  St.  Albans,  92. 

Tecktonius  v.  Scott,  386. 

Teegarden  v.  Lewis,  631. 

Teipel  v.  Meyer,  148. 

Telford  v.  Garrels,  337,  338. 

Telford  v.  Railroad  Co.,  359. 

Temperton  v.  Russell.  441. 

Temple  v.  Johnson,  116. 

Templeton  v.  Wile,  52. 

Tenant  v.  Elliott,  425. 

Tenant  v.  Tenant,  4.36. 

Tennent-Stribling    Shoe    Co.    v.    Roper,. 

Tennessee  Mfg.  Co.  v.  James,  516. 

Te  Poel  V.  Shutt,  554. 

Territt  v.  Bartlett,  .323,  327,  416   434 

Terry  v.  Bissell,  587. 

Tewksbury  v.  Howard,  105. 

Texas  &  P.  Ry.  Co.  v.  Smith,  404. 

Texas  &  St.  L.  R.  Co.  v.  Robards,  359. 

Texas  &  St.  L.  R.  Co.  v.  Rust,  517. 

Textor  v.  Hutchings,  561. 

1  hacher  v.  Pray.  636. 

Thacker  v.  Hardy,  34.5,  421,  431. 

Thacker  v.  Howell,  493. 

Thackrah  v.  Haas,  235. 

Thallhimer    v.    Brinckerhoff,    372,    375> 

460. 
Thames  v.  Jones,  452. 
Thatcher  v.  St.  Andrew's  Church,  66. 
Thayer  v.  Boyd,  1S2. 
Thayer  v.  B racket  t,  555. 
Thayer  v.  Burchard,  149. 
Thayer  v.  Daniels.  462,  465. 
Thayer  v.  Elliott,  436. 
Thayer  v.    Kelley,  4.59. 
Thayer  v.  Knote,  278. 
Thayer  v.  Luce,  109. 
Thayer  v.  Rock,  407. 
Thayer  v.  Viles,  70. 
Thing  V.   Libb.'y,  208. 
Third  Nat.  Bank  v.  Harrison,  345. 
Third  Nat.  Bank  v.  Railroad  Co.,  463. 
Thomas  v.  Armstrong.  96. 
Thomas  v.  Bartow,  258. 


724 


CASES  CITED 
[The  figures  refer  to  pages] 


Thomas  v.  Bland,  470. 

Thomas  v.  Brown    642. 

Thomas  v.  Cadwallader,  565. 

Thomas  v.  Caulkett,  317,  365. 

Thomas  y.  Coal  Co.,  18. 

Thomas  v.   Cook,  88. 

Thomas  v.  Cronise,  342. 

Thomas  v.  Groom,  99. 

Thomas  t.  Dike^  219. 

Thomas  v.  Evans,  555. 

Thomas  v.  Greenwood,  34,  37. 

Thomas  v.  Haywood,  469. 

Thomas  v.  Hunter,  329. 

Thomas  v.  Miles'  Adm'r,  388,  409. 

Thomas  v.  Miller,  338. 

Thomas  v.  Railroad  Co.,  242,  360. 

Thomas  v.  Hichmond,  430. 

Thomas  v,  Rogers,  113. 

Thomas  v.   South   Haven   &  E.   R.   Co., 

145. 
Thomas  v.  Taggart,  510. 
Thomas  v.  Thomas,  135,  137. 
Thomas  v.  Todd,  545. 
Thomas,  B.  &  W.  Mfg.  Co.   v.   Railway 

Co.,  610. 
Thomas  Mfg.  Co.  v.  Prather,  449. 
Thomason  v.  Dayton,  71. 
Thompson  v.  Al^er,  130. 
Thompson  v.   Blanchard,  79,  108. 
Thompson  v.  Brannin,  495. 
Thompson  v.  Brown,  531. 
Thompson  v.  Gaffey,  586. 
Thompson  v,  Gould,  252,  596. 
Thompson  v.  Hamilton,  203,  497. 
Thompson  v.  Hawks,  309. 
Thompson  v.  Howard,  633. 
Thompson  v.  Hudgins^  175. 
Thompson  v.  Lay,  208. 
Thompson  v.  Leach,  227. 
Thompson  v.  Lee,  271, 
Thompson  v.  Lib  by,  585. 
Thompson  v.  Lockwood,  300,  303. 
Thompson  v.   McKee,  491. 
Thompson  v.  Manufacturing  Co.,  588. 
Thompson  v.  Miunich,  237. 
Thompson  v.  Niggley,  305. 
Thompson  v.  I'eck,  294. 
Thompson  v.  Percival,  530. 
Thompson  v.  Reynolds,  370,  371,  373. 
Thompson  v.  Rose,  296. 
Thompson  v.  Smith,  70. 
Thompson  v.  Stevens,  55. 
Thompson  v.  Stewart,  493. 
Thompson  v.  Taylor,  432.  435. 
Thompson  v.  Warren,  230.  373. 
Thompson  v.  Whitman,  365. 
Thomson  v.   Beal,  504. 
Thomson  v.  Gortner,  54. 
Thomson  v.  James,  31. 
Thomson  v.  Poor.  528.  533. 
Thormaehlen  v.  Kaeppel,  206,  222. 
Thorn  v.   Knapp,  610. 
Thorn  v.  Pinkham,  301. 
Thornborow  v.  Whiteacre,  167. 
Thorndike  v.  Stone,  337. 
Thorne  v.  Deas,  139. 
Thome  v.  Yontz,  356,  422. 
Thornell  v.  Brockton.  493. 
Thornett  v.  Haines,  034. 


Thornhill  v.  Neata,  527. 

Thornton  v.  Appleton,  603,  605. 

Thornton  v,   Kelly,  104. 

Thornton  v.  Kempster,  253. 

Thornton  v.  Railroad  Co.,  510. 

Thornton  v.  Strauss,  632. 

Thornton  v.  Sturgis,  23. 

Thornton  v.  Wynn,  581, 

Thorp  v.  Smith,  286. 

Thorp  V.  Thorp,  433. 

Thorpe  v.  Thorpe,  565. 

Thrall  v.  Newell,  507. 

Thrall  v.  Thrall,  271. 

Thrift  V.  Pavne,  579. 

Thruston  v.  Thornton,  15,  26,  47,  50. 

Thum  Co.  v.  Tloczynski,  392. 

Thurman  v.  Burt,  302. 

Thurston  t.  Arnold,  512. 

Thurston  v.  Blanchard,  292. 

Thurston  v.  Ludwig,  533. 

Thurston  v.  Mills,  631. 

Thurston  v.  Minke,  472. 

Thurston  v.  Percival,  376. 

Thwing  V.  Lumber  Co.,  251,  252. 

Tibbetts  v.  Gerrish,  174, 

Tibbits  V.  George,  463. 

Tice  v.  Freeman,  107. 

Tichnor  v.  Hart,  23. 

Tiddy  v.  Harris.  162. 

Tightracyer  v.  Mongold,  634. 

Tilley  v.  Association,  334. 

Tilley  v.  Damon,  .300. 

Tillinsjhast  v.  Boothby,  391. 

Tillock  v.  Webb,  331,  332. 

Tillotson  V.  Grapes,  589. 

Tillotson  V.  Prichard,  470. 

Tillou  T.  Britton,  554. 

Timraerman  v,  Dever,  391. 

Timmerman  v.  Stanley,  561, 

Timothy  v.  Wright,  356. 

Tingle  v.  Fisher,  461,  465. 

Tingley  v.  Boom  Co.,  Ill, 

Tingley  v.  Land  Co.,  526. 

Tinn  v,  Hoffman,  25,  38,  43. 

Tisdale  v.  Harris,  126. 

Tisher  v.  Beckwith,  65. 

Titcomb  v.  Vantyle,  225. 

Tobey  v.  Robinson,  407. 

Tobey  v.  Wood,  201. 

Tobias  v.  Lissberger,  582. 

Tobias  v.  Rogers.  628. 

Tobin  V.  Bass,  66. 

Todd  V.  Clapp,  201. 

Todd  V.  Ferguson,  424. 

Todd  V.  Grove,  310. 

Todd  V,  Huntington,  540. 

Todd  V.  Stewart,  61. 

Todd  V.  Stokes,  471. 

Todd  V.  Weber,  448. 

Tode  V.  Gross,  392. 

Toland  v.  Corey,  256. 

Toledo  Sav.  Bank  v.  Rathmann,  5S8. 

Toledo,  W.  &  W.  Ry.  Co.  v.  Chew,  647. 

Tolhurst  V.  Powers,  153. 

Tolley  V.  Poteet,  286. 

Tolman  Co.  v.  Reed,  434. 

Tolson's  Adm'r  v.  Garner,  225. 

Tompkins  v.  Batie,  555. 

Tompkins  v.  HiU,  164,  616. 


CASES   CITED 
[Tba  flguree  refer  to  pages] 


725 


Tomkinson  v.  Straight,  127. 

Tone  V.  Shankland.  461. 

Tone  V.  Wilson,  271. 

Tool  Co.  V.  Norris,  356,  357. 

Tope k a  Water  Supply  Co.  V.  Root,  229. 

Topliff  V.  McKendree,  51. 

Topliff  V.  Topliff,  510. 

Topp  V.  White,  589. 

Topping  V.  Bickford,  241. 

Topping  V.  Swords,  51. 

Tornado,  The,  595. 

Torpey  v.  Murray,  380. 

Torrence  y.  Shedd,  370. 

Torrey  v.  U.  S.,  180. 

Totten  V.  U.  S.,  488. 

Touche  V.  Warehousing  Co^  445. 

Touissaint  v.  Martinnant,  628. 

Touro  V.  Cassin,  434,  042. 

Towle  V.  Dresser,  192,  205. 

Towle  V.  Larrabee,  328. 

Towle  V.  Wadsworth,  93. 

Town  of  Allegheny  v.  Railroad  Co.,  509. 

Town  of  Brandon  v.  Jackson,  165. 

Town  of  Eagle  v.  Kohn,  422. 

Town  of  Grand  Isle  v.  Kinney,  148. 

Town  of  Hamden  v.  Merwin,  56. 

Town  of  Meredith  v.  Ladd,  351. 

Town  of  Royalton  v.  Turnpike  Co.,  508. 

Town  of  Rutland  v.  Page,  04. 

Town  of  Sharon  v.  Gager,  301. 

Town  of  Thetford  v.  Hubbard,  352. 

Towue  V.  Grover,  82. 

Towner  v.  Lucas'  Bx'r,  491. 

Townsend  v.  Cowles,  256,  281,  640. 

Townsend  t.  Crowdy,  037,  038. 

Townsend  v.  Hargraves,   114,   115,   127, 

130,  132. 
Townsend  v.  Minford,  101. 
Townsend  v.  Rackham,  449. 
Townsend  v.  Vanderwerker,  116,  117. 
Townsend  v.  Wagon  Co..  602. 
Township  of   Washington  v.   First  Nat. 

Bank,  465. 
Tracey  v.  Sacket,  311. 
Tracy  v.  Keith.  230. 
Tracy  v.  Talmage,  415,  416,  428. 
Trader  v.  .Tarvis,  189. 
Trader  v.  Lowe,  208. 
Traders'  Bank  v.  Alsop,  422. 
Traders'  Nat.  Bank  v.  Barker,  152. 
Tradesmen's  Nat.   Bank  of  Philadelphia 

V.  Green,  462. 
Traill  V.  Baring,  270. 
Train  v.  Gold,  18,  134,  138. 
Trainer  v.  Trumbull,  196,  199,  645. 
Trarably  v.  Ricard.  248. 
Trammell  v.  Vaughan,  558. 
Trasher  v.  Everbart,  64,  65. 
Trask  v.  Vinson,  589. 

Traver  v.  ,  134,  141. 

Travis  v.   Insurance  Co.,  40. 
Treadwell  v.  Tobert,  366. 
Treat  v.  Ililes,  93,  97. 
Tredway  v.  Riley,  434. 
Trentman  v.   Wahrenburg,  386. 
Trenton   Mut.    Life  &   Fire   Ins.   Co.   v. 

.Johnson,  342,  343. 
Trenton  Potteries  Co.   t.  Oliphant,  389, 

390,  395,  396,  520. 


Trenton  Terra  Cotta  Co.  t.  Shingle  Co., 

501. 
Trelheway  v.  Hulett,  292. 
Trevor  v.  Wood,  31,  33,  38,  103. 
Trigg  V    Read,  257,  258,  640. 
Trimble  v.  Rudy,  136. 
Trimbo  v.  Trimbo,  224. 
Trine,  Appeal  of,  335. 
Tripp  V.  Brownell,  460. 
Trist  V.  Child,  3.55,  356,  407. 
Troeder  v.  Hyams,  486. 
Tronson  v.  University,  567. 
Trotter  v.  Heckscher,  571. 
Trounstine  v.   Sellers,  27,  38,  39. 
Troup  V.  Appelman,  293. 
Troutman  v.  Lucas,  61o. 
Trower  v.  Elder,  516,  518. 
Troy  V.  Bland,  638. 
Troy  Fertilizer  Co.  v.  Logan,  56. 
Trov  &  G.  R.  Co.  V.  Com.,  180. 
Truax  t.  Miller,  165. 
I  Truby  t.  Mosgrove,  335,  337. 
i  True  V.  Telegraph  Co.,  009. 
Trueblood  v.  Trueblood.  100,  191. 
Trueman  v.  Fenton,  174. 
Trueman  v.  Loder,  105. 
Truett  V.  Wainwright,  602. 
Trunde's  Adm'r  v.  Riley,  353. 
Trundle  v.  Riley,  353. 
Tiuscott  V.  King,  551. 
Trustees  of  Christian  Church  of  Wolcott 

V.  Johnson,  241. 
Trustees  of  Cincinnati  Township  v.  Og- 

den,  241. 
Trustees  of  Columbia  College  v.  Lynch, 

472. 
Trustees  of  Columbia  College  v.  Thach- 

er,  472. 
Trustees    of    First    Baptist    Church    of 

Ithaca  V.  Bigelow,  112. 
Trustees    of    First    Orthodox    Congrega- 
tional Church  V.  Walrath,  518. 
Trustees  of  Main  Cent.  Ins.  v.  Haskell, 

148. 
Trustees  of  Troy  Conference  Academy  v. 

Nelson,  147. 
Tuck  V.  Downing,  260,  282. 
Tucker  v.  Bartle,  157. 
Tucker  v.  Cocke,  236. 
Tucker  v.  Lawrence,  39. 
Tucker  v.  Moreland,  186,  189,  191,  211. 

215. 
Tucker  v.  Mowray,  332. 
Tucker  v.  Smith,   499. 
Tucker  v.  Woods,  25,  43.  140. 
Tuckerman  v.  Hinkey,  331. 
Tuckerman  v.  Newhall,  479. 
Tufts  V.  Mining  Co.    103. 
Tulk  V.  Moxhay,  472. 
Tullett  V.  Armstrong,  239. 
Tupper  V.  Cadwell,  197,  198. 
Turley  v.  Thomas,  520. 
Turlington  v.  Slaughter,  174,  173. 
Turnbull  v.  Brock,  157,  161. 
Turner  v.  Abbott,  392. 
Turner  v.  Egerton,  627,  628. 
Turner  v.  Frisby,  198,  645. 
Turner  v.   Gaither,   104. 
Turner  v.  Harvey,  275. 


726 


CASES    CITED 
[The  figures  refer  to  pages] 


Turner  v.  Hubbell,  82. 

Turner  v.  Lorillard  Co.,  106. 

Turner  v.  Mason,  125. 

Turner  v.  Morris,  94. 

Turner  v.  Owen,  157. 

Turner  v.  Plowden,  617. 

Turner  v.  Rusk,  231. 

Turner  v.  Thompson,  427. 

Turner  v.  Webster,  644. 

Tuscaloosa  Ice  Mfg.  Co.  v.  Williams, 
397. 

Tutt  V.  Ide,  302. 

Tuttle  V.  Armstead,  86,  628. 

Tuttle  V.  Campbell,  632. 

Tuttle  V.  Love,  25. 

Tweddle  v.  Atkinson,  444,  445. 

Tweeddale  v.  Tweeddale,  450. 

Tweedie  Trading, Co.  v.  James  P.  Mc- 
Donald Co.,  593. 

Twenty-Third  St.  Baptist  Church  v. 
Cornell,  148. 

Twitchell  v.  Bridge,  271. 

Tyler  v.  Association,  161. 

Tyler  v.  Carlisle,   417,  426. 

Tvler  V.  Fleming,  186,  211. 

Tyler  v.  Telegraph  Co.,  404. 

Tyler  v.  Waddington,  331. 

Tyler  v.  Young,  589. 

Tyler  Cotton  Press  Co.  v.  Chevalier, 
162. 

Tynan  v.  Dullnig.  112. 

Tysen  v.  Somerville,  530. 

Tyson  v.  Passmore.  26.S. 

Tyson  v.  Rickard,  334,  339. 

u 

Ueberroth  v.  Reigel,  27. 

I'ecker  v.  Koehn,  209.  212. 

Uhler  V.  Applegate,  331. 

I.'hlig  V.  Barnum,  527. 

Ullman  v.  Association.  427. 

Ullmann  v.  Railroad  Co.,  505. 

Ullsperger  v.  Meyer,  102._106,  111. 

Ulmer  v.  Farnsworth,  497. 

Ulrich  V.  Arnold,  50. 

Underwood   v.  Barker,  389. 

Underwood  v.  Brookman,  281 

Underwood  v.  Dollins,  64. 

Underwood  v.  Lewi.s,  596. 

Underwood  v.  Scott,  325. 

Underwood  v.  Wolf.  527,  588. 

Unger  v.  Boas.  422. 

Ungericht  v.  State,  330. 

Union  Bank  v.  Coster's  Ex'rs,   30. 

Union  Bank  v.  Jacobs,  242. 

Union  Biscuit  Co.  v.  Springfield  Grocer 
Co.,  544,  547. 

Union  Cent.  Life  Ins.  Co.  v.  Berlin.  407. 

Union  Cent.  Life  Ins.  Co.  v.  Hilliard, 
187,  335. 

Union  Cent.  Life  Ins.  Co.  v.  Schidler. 
291.  294. 

Union  Hardware  Co.  v.  Manufacturing 
Co.,  243. 

Union  Locomotive  &  Express  Co.  v.  Rail- 
road Co.,  409. 

Union  Mut  Ins.  Co.  v.  Kirchoff,  71. 


Uniun  Mut.   Life   Ins.   Co.    v.    Hanford, 

447. 
Union  Nat.  Bank  v.  Baldenwick,  545. 
Union  Xat.  Bank  v.  Louisville,  N.  A.  &. 

C.  Ry.  Co.,  323. 
Union  Nat.  Bank  v.  Miller,  38. 
Union  Nat.  Bank  v.  Roberts,  601. 
Union  Pac.  R.  Co.  v.  Anderson,  165. 
Union  Pac.  R.  Co.  v.  Durant,  446. 
Union  Pac.  R.  Co.  v.  McAlphine,  117. 
Union  Pac.  R.  Co.  v.   Rainey,  4U3. 
Union  Ry.    Storage  Co.    v.   McDermott, 

449. 
Union  Strawboard  Co.  v.   Bonfieid,  388. 
United  Shoe  Machinery  Co.  v.  KimbalL, 

389 
U.  S.  V.  Addyston  Pipe  &  Steel  Co.,  394. 
U.   S.  V.  American  Tobacco  Co.,  395. 
U.  S.  V.  Bainbridge,  188. 
U.  S.  V.  Behan,  564.  586,  611. 
U.   S.  V.  Blakeney,  188. 
U.  S.  V.  Bradley,  406,  409. 
U.  S.  V.  Charles,  252. 
U.  S.  V.  Clarke,  180. 
U.  S.  V,  Gumming,  180. 
U.  S.  V.  Dietrich,  437. 
U.  S.  V.  E.  C.  Kight  Co.,  395. 
U.  S.  V.  Greene,  365. 
U.  S.  V.  Grossmayer,  182. 
U.  S.  V.  Hodgson,  409. 
U.  S,  V.  Holmes,  180. 
U.  S.  V.  Huckabee,  298,  302. 
U.  S.  V.  Ingate,  179. 
U.  S.  V.   Kirkpatrick,  550,  55L 
U.  S.  V.  Lane,  179. 
U.  S.  V.  Mora.  409. 
U.  S.  V.  Morgan,  545. 
U.  S.  V.  Price,  481. 
U.  S.  V.  Railroad  Co.,  508. 
U.  S.  V.  Rodgers,  435. 
U.   S.  V.  Spalding,  604. 
U.  S.  V.  Tingey.  179. 
United  States  Fire  &  Marine  Ins.  Co.  v. 

Kimbedy,  266. 
United  States  Mortg.  Co.  v.  Henderson, 

155. 
Universal  Fashion   Co.  v.   Skinner,  488. 
Updike  V.  Ten  Broeck,  96. 
Updike  V.  Titus,  136. 
Up  River  Ice  Co.  v.  Denier,  390,  458. 
Upson  V.  Holmes,  94. 
Upton  V.  Tribilcock,  247.  249.  256,  281. 
Upton  Mfg.  Co.  V.  Huiske.  582. 
Urmston  v.  Whitelegg.  385,  395. 
Urquhart  v.  Mortgage  Co.,  607. 
Usher  v.  McBratney,  362. 
Utley  V.  Donaldson,  36,  533. 


Vahlberg  v.  Keaton,  338. 
A'ale  v.  Insurance  Co.,  266. 
Valentine  v.  Bell,  175. 
Valentine  v.  Foster,  136. 
Valentine  v.   Piper,  486. 
Valentini  v.  Canali,  217. 
Vallandingham  v.  Johnson,  211. 
Vallett  V.  Parker.  422. 
Valley  Planting  Co.  v.   Wise,  99, 


CASES   CITED 
[The  figures  refer  to  pages] 


727 


Valley  R.  Co,  v.  Iron  Co.,  640. 

Valpy  V.  Sanders,  633. 

Van  Alstyne  v.  Van  Slyck,  520. 

Van  Atta   v.  McKinney's  Ex'rs,  185. 

Van   Bramer  v.   Cooper,  202. 

Van  Brunt  v.  Eolf,  604,  605. 

Vanbrunt  v.  Singley,  248. 

Van  Campen  v.  Ford,  154. 

Vance  v.  Funk,  63. 

Vance  v.  Lowther,  602. 

Vance  v.  Word,  220. 

Van  Clief  v.  Van  Vechten,  540. 

Vandegrift  v.  Vandegrift,  425. 

Vanderbeck  v.  Rochester,  640. 

Vanderbeck  v.  Vanderbeck,  .525. 

Vanderbilt  v.  Schreyer,  ISt,  159. 

Van  Deusen  v.  Blum,  644. 

Van  Deusen  v.  Sweet,  227. 

Van  Gorder  v.  Bank,  151. 

Van  Horn  v.  Hann,  226. 

Van  Horn  v.  Keenan,  234. 

Van  Horn  v.  Kittitas  County,  364. 

Van  Horn  v.  A^an  Horn,  441. 

Van  Houten  v.  Morse,  275. 

Van  Hoven  v.  Irish,  332. 

Van  Keuren  v.  Corkins,  402. 

Van  Leyen  v.  Wreford,  476. 

Vanmeter  v.  Spurrier,  326. 

Vannoy  v.  Patton,  327. 

Van  I'atton  v.  Beals,  230. 

Van  Paucke  v.  Society,  369. 

Van  Santen  v.  Oil  Co.,  629. 

Van   Schaick  v.  Edwards,  433. 

Van  Schaick  v.  Van  Buren.  55. 

Van  Syckel  v.  O'Hearn,  533. 

Van  Valkenburg  v.  Rogers,  27. 

Van  Valkenburgh  v.  Smith,  72. 

Van  Valkinburgh  v.   Watson,   198,   645. 

Van  Vleet  v.  Sledge,  433. 

Van  Vleit  v.  Jones,  71. 

Van  Winkle  &  Co.  v.  Ciowell,  49L 

Van  Wyck  v.  Brasher,  234. 

Varney  v.  Conery,  163,  616. 

Varney  v.  French,  328. 

Varnum  v.  Hygate,  252.' 

V'arnum  v.  Thurston,  508. 

Vassar  v.  Camp,  31,  32,  33,  38. 

Vasse  V.   Smith,  222. 

Vaughan  v.  Porter,  507. 

Vaughn  v.  Goodman,  66. 

Vaught  V.  Rider,  340. 

Vavington  v.  Clarke,  189. 

Vawter  v.  Griffin,  126. 

Veach  v.  Thompson,  305. 

Veal  V,  Fortson,  203. 

Veazey  v.  Allen,  355. 

Veazie  v.  Williams,  295. 

Vehue  v.  Pinkham,  204,  219. 

Venezuela  R.  Co.  v.  Kisch,  269. 

Vent  V.  Osgood,  186,  190,  204.  2ll    218. 

219. 
Vermont  Loan  &  Trust  Co.  v.  Hoffman, 

323. 
Viallet  V.  Consolidated  Ry.  &  Power  Co.. 

309. 
Vickery  v.  Welch,  302. 
Victorian  Daylesford  Syndicate  t.  Dott, 

323. 
Vilas  V.  Downer,  185. 


X'iieLt  V.  :>loler,  283. 

Village  of  Port  Jervis  v.   Bank,  628. 

Vinal  V.  Continental  Const.,  etc.,  Co. 
640. 

Vinal  V.  Improvement  Co.,  257. 

Vincent  v.  Germond,  127. 

Viuey  v.  Rignold,  368. 

Vinz  V.  Beatty,   332. 

Violett  V.  I'atton,   108,  109. 

Violett  V.  Powell's  Adm'r,  104,  105. 

Violette    v.    Rice,    491. 

Virginia-Carolina  Chemical  Co.  v.  Fish- 
er, 237. 

Virginia  Hot  Springs  Co.  v.  Harrison, 
35. 

Vischer  v.  Yates,  342,  363. 

Viser  v.  Bertrand,  383,  417. 

Vittum  V.  P^stey,  559. 

Vogle  V.  Ripper,  605. 

Vogt  V.  Hecker,  591. 

Volk  V.  Stowell,  597. 

Voluntary  Relief  Department  v.  Spencer. 
368. 

Volz  V.  Grummett,  513. 

Von  Brandenstein  v.  Ebensberger,  154. 

Von  Trotha  v.  Bamberger,  93. 

Vooght  V.  Winch,  61. 

Vos  V.  Robinson,  497. 

Vosburgh  v.  Diefendorf,  422. 

Vose  V.  Insurance  Co^  267. 

Vought  V.  Williams,  577. 

Vreeland   v.   Stone  Co.,  288. 

Vrooman  v.  McKaig,    631. 

Vrouman  v.     Turner,   450. 

w 

Wabash     Valley     Protective     Union     v. 

.James,  294. 
Waddy  Bluegrass  Creamery  Co.  v.  Mfi. 

Co.,  521. 
Wade  V.  Kalbfleisch,  9,  474. 
Wade  V.  Pulsifer,  309. 
Wade  V.  Simeon,  154. 
Wadhams  v.  Page,  530. 
Wadleigh  v.  Sutton,  648. 
Wadsworth  v.   Sharpsteen,  234,  235. 
Wadsvvorth  v.  Wendell,  64. 
Wager  v.  Wagoner,  229. 
Waggoner  v.  Gray's  Adm'rs,  85. 
Wagner  v.  Breed,  433. 
Wagner  v.  Hildebrand,  345. 
Wagner  v.  Insurance  Co.,  289. 
Wagner  v.  J.  »&  G.  Meakin,  149. 
Wagner  Co.  v.  Cawker,  516. 
Wagniere  v.  Dunnell,  98. 
Wahl  v.  Barnum,  97. 
Wailing  v.  Toll,  193,  196. 
Wain  V.  Warlters,  108. 
Wainer  v.  Insurance  Co.,  132, 
Wainright  v.  Wilkinson,  19L 
Wait  V.  Bilker,  129. 
Wait  V.   Maxwell,  227,  228. 
Wait  V.  PomiM'ov,  601. 
Wait  V.  Wait's  Ex'r,  86. 
Waite  V.  Leggett,  638. 
Waite  V.  Merrill,  19,  643. 
Waite  V.  Press  Pub.  Ass'n,  347. 
Wake  V.  Harrop,  485,  493. 


728 


CASES   CITED 
(The  figures  refer  to  pages] 


Wakefield  v.  Brown,  493. 
Wakeman  v.  Manufacturing  Co.,  61L 
Walden  v.  Insurance  Co.,  267. 
Waldron  v.  Murphy,  556. 
Wales  V.  Stout,  81. 
Walker  v.  Abt,  337. 
Walker  v.  Bank,  476. 
W'alker  v.  Barron,  497. 
Walker  v.  Brooks,  457, 
Walker  v.  Brown,  18. 
Walker  v.  Conant,  632,  638. 
Walker  v.  Cronin,  441,  442. 
Walker  v.  Denlson,   5o8. 
Walker  v.  Douglas,  505. 
Walker  v.  Duncan,  647. 
Walker  v.  Ebert,  248. 
Walker  v.  Edward   Thompson  Co.,   541. 
Walker  v,  Emerson,  620. 
Walker  v.  France,  492. 
Walker  v.  Gregory,   376. 
W^alker  v.  Henry,  175. 
Walker  v.  Jeffries,  416. 
Walker  v.  Johnson,  99. 
Walker  v.  Lovell.  408. 
Walker  v.  McCulloch.  478. 
Walker  v.  Nussey,  130. 
Walker  v.  Perkins,  376,  435. 
Walker  v.   Perryman,  372. 
Walker  v.  Railroad  Co.,  97. 
Walker  v.   Shackelford,  120. 
Walker  v.  Smith,  139. 
Walker  v.   Supple,  126. 
Walker  v.  Tucker,  595. 
Walker  v.  Walker.  66.  382. 
Walker  v.  Winn.  228. 
Wall  T.  Railroad  Co..  43. 
Wall  V.   Schneider,  346. 
Wall  V.  Wall,  66.  67. 
Wall's  Appeal,  55. 
Wallace  v.  Dowling,  125. 
Wallace  v.  Harris,  306. 
Wallace  v.  Jewell.  603. 
Wallace  v.  Leroy,  196. 
Wallace  v.  Morgan,  497. 
Wallace  v.  Morss.  221. 
Wallace  v.  Railway  Co..   285. 
W'allace  v.  Rappleye,  377. 
Wallace  v.  Scoggins,  117. 
Wallace  v.  Tice,  605. 
Wallace  v.  Townsend.   46. 
Wallace's  Lessee  v.  Lewis,  211,  212. 
Wallace's  Lessee  v.  Miner,  70. 
Waller  v.  Cralle,  303. 
Wallin  Y.  Highland  Park  Co.,  193,  194. 
Wallis  V.  Bard  well,  197. 
Wallis  V.  Carpenter,  480,  516. 
Walls  V.  Bailey.  498. 
Walpole  V.  Bridges,  537. 
Walsh  V.  Association,  48,  554. 
Walsh  V.  Colvin,  554. 
Walsh  V.  Featherstone,  449. 
Walsh  V.  Fisher,  596. 
Walsh  V.  Morse,  285. 
Walsh  V.  Trevanion,  504. 
Walter  v.  Foutz,  338. 
'Walter  v.  Morgan.  275. 
Walter  v.  Victor  G.  Bloede  Co.,  79. 
Walter  A.  Wood  Mach.  Co.  v.  Gaertner. 
492. 


Walters  V.  Eaves,  286. 

Walters  v.  Morgan,  275. 

W'alton  V.  Black,  571. 

Walton  V.  Burton,  66. 

Walton  V.  Hastings,  602. 

Walton  Plow  Co.  v.  Campbell,  605. 

Wambole  v.  Foote,  191. 

Wamsley  v.  Lindenberger,  191. 

Wanmaker  v.  Van  Buskirk,  620. 

Wann  y.  McNulty,  599. 

Wanner  v.  Landis,  488. 

Waples  V.  Hastings,  191. 

Ward  V.  Anderson,  210,  218. 

Ward  V.  Armstrong,  269,  307,  308. 

Ward  V.  Building  Co.,  516. 

Ward  V.  Hackett   603. 

Ward  V.  Hobbs,  277. 

Ward  V.  Hollins,  167. 

Ward  V.  Johnson,  477,   480. 

Ward  V.  Laverty,   206. 

Ward  V.  Matthews,  99.  513. 

Ward  V.  Morrison.  465. 

Ward  V.  I'owell,  19. 

W^ard  V.   Scherer,   207. 

Ward  V.  Vance,  595. 

Ward  V.  Vosburgh.  432,  433. 

Ward  V.  Ward,  329. 

Warden  v.  Fosdick.  292. 
Warden  v.  Williams,  52. 

Warden  v.  Bennett.  80. 

Warder,  Bushnell  &  Glessner  Co.  r. 

Whitish,  28.';. 
Warder,    Bushnell    &    Glessner    Co.    T. 

Willyard,  605. 
Ware  v.  Allen,  86.  490. 
Ware  v.  Cartledge,   191. 
Ware  v.  Chappell,  565,  506. 
Ware  v.  Curry,  409. 
Ware  v.  Spinney,  431. 
Ware  v.  W^isner,  182. 
Warfield   v.    Booth,  388. 
Waring  v.  Mason,  105,  113. 
Warner  v.  Railway  Co^  96,  98. 
Warner  v.  Warner,  23v. 
Warner  v.  Willoughby.  87. 
Warnock  v.  Campbell'.  234. 
Warnock  v.  DaAis,  343. 
Warren  v.  Abbett,  88. 
W^arren  v.  Bank.  461. 
Warren  v.  Cleveland.  621. 
Warren  v.  Costello.  149. 
Warren  v.  Hodge,  156. 
Warren  v.  Lynch.  64. 
Warren  v.  Pim,  379. 
Warren  v.  Wheeler,  543. 
Warren  Chemical   &    Mfg.    Co.   v.    Hol- 

brook.  96. 
Warrius  v.  Williams,  605. 
Warrington  v.  Early.  602. 
Warrum  v.  White,  504. 
Warwick  v.  Cooper,  191. 
Washaw  t.  Gimble,  384. 
Washbourn  v.  Burrows.  94. 
Washburn  v.  Dosch,  99,  386. 
Washburn  v.  Fletcher,  32. 
Washburn  v.  Investment  Co.,  449. 
W^asliington  v.  Johnson,  535. 
Washington.  A.  &  G.  Steam  Packet  Co. 
V.  Sickles.  98. 


CASES   CITED 
[The  figures  refer  to  pages] 


729 


Washington  Brewery  Co.  v.  Carry,  IIU. 

Washington  Cent.  Imp.  Co.  v.  Newlands, 
284. 

Washington  Liquor  Co.  v.  Shaw,  416. 

Washington  Mills  Mfg.  Co.  v.  Insurance 
Co.,  267. 

Washington  Nat.  Bldg.  Loan  &  Invest- 
ment Ass'n  V.  Stanley,  334.  434. 

Washington  Natural  Gas  Co,  v.  John- 
son, 548.  . 

Washington  University  Co.  t.  Finch, 
183. 

Wassermann  v.  Sloss,  426. 

Watchman  v.  Crook,  583. 

Waterbury  v.  Andrews,    287. 

Waterbury  v.  Egan,  326. 

Waterman  v.  Andrews,  508. 

Waterman  v.  Banks,  514. 

Waterman  v.  Merrow,  461. 

Waters  v.  Bean,  175. 

Waters  v.  Mattingley,  276,  277. 

Waters  v.  Shafer,  84. 

Waters  v.  Tompkins,  621. 

Waters  t.  Union  Trust  Co.,   147. 

Waters  v.  White,  151,  152. 

Watkins  v.  Baird,  300. 

Watkins  v.  Brant,  308. 

Watkins  v.  Hodges,  52a 

Watkins  v.  Junker,  609. 

Watkins  v.  Robertson,  41,  70,  71,  73. 

Watkins  v.  Rymill,  24. 

Watkins  v.  Watkins,  9. 

Watson  v.  Bagley,  461. 

Watson  V.  Baker,  268. 

Watson  V.  Blaine,  506. 

Watson  V.  Blossom,  167. 

Watson  V.  Brown,  254. 

Watson  V.  Cresap,  641. 

Watson  V.  Cross,  193,  197. 

Watson  V.  Doyle,  144. 

Watson  V.   Mahan,  309. 

Watson  V.  Needbam,  609. 

Watson  V.  Randall,  85. 

Watson  V.  Sherman,  113. 

Watson  V.  Turner,  173. 

Watson's  Ex'rs  v.  McLaren,  108. 

Watt  V,  Cranberry  Co.,  104. 

Watte  V.  Wickersham,  346. 

Watters  v.  McGuigan,  91. 

Watts  v.  Camors,  515,  518. 

Watts  V.  Freucbe,  157,  161. 

Watts  y.  Van  Ness,  328. 

Watts   V.   Weston,   608. 

Watts  T.   Witt,  117. 

Waugh  V.  Beck,  417. 

Waugh  v.  Cope,  549. 

Waugh  V.  Morris,  41L 

Way  V.   Langley,  318. 

Way  V.    Sperry,   174. 

Waydell  v.  Luer,  530. 

Wayman  v.  Wayraan.  22. 

WaymeU   v.   Reed,  415. 

Wayne  Co.  v.  Randall,  640. 

Wead  V.  Larkin,  470. 

Weatherby  v.  r>orham,  19. 

Weatherby  v.  Smith,  338. 

Weaver  v.   Burr,  38,  41,  45. 

Weaver  v.    Harlan,   426. 

Weaver  v.  Jones,  187,  190. 


Weaver  v.   Whitney,  353. 
Webb  V.  Buckelew,  618. 
Webb  V.  England,  613. 
AVebb  V.  Railroad  Co.,  126. 
Webb  V.  Steele,  456. 
Webb  V.  Stephenson,  563. 
Webber  v.  Donelly,  416. 
Webber  v.  Howe,  437. 
Weber  v.  Barrett,  301,  367. 
Weber  v.  Christen,  66. 
Weber  v.  Shay,  366. 
Weber  v.  Squier,  608. 
Webster  v.  Anderson,  129. 
Webster  v.  Brown,  106. 
Webster  v.  Cecil,  258   278,  500,  614. 
Webster  v.  Fleming,  450,  451. 
Webster  v.  Gray,  116. 
Webster  v.  Le  Compte,  79,  174. 
Webster  v.  Munger,  414,  415,  435. 
Webster  v.  Woodford.  223. 
Weed  v.  Black,  355. 
Weed  V.  Jewett,  459. 
Week  V.  Tibold,  50. 
Weeks  v.  Hunt,  464. 
Weeks  v,  Lippencott,  363. 
Weeks  v.  Maillardet,  69. 
Weeks  v.   Martin,  92. 
Weems  v.  Jones,  338. 
Wehner  v.  Bauer,  56. 
Weiden  v.  Woodruff,  25,  39,  41,  42. 
Weidler  v.  Kaufifman,  455. 
Weidner  v.  Phillips,  282. 
Weinberg  v.  Naher,  556, 
Weinsberg  v.  St.  Louis  Cordage  Co.,  10. 
Weintz  v.  Hafner,  574. 
Weir   V.   Hudnut,   131. 
Weir  V.  Marley,  384. 
Weir  Plow  Co.  v.  Walmsley,  509. 
Weis  v,  Devlin,  595. 
Welch  V.  Bunce,  204. 
Welch  V.  Darling,  119, 
Welch  V,  Mandeville,  456, 
Welch  V.   McDonald,  517. 
Welch  V,  Marvin,  84. 
Welch  V.  Miller,  615. 
Welch  V,  Mischke.  531. 
Welch  V,  Welch,  192. 
Welch  V.  Whelpley.  116. 
Weld  V.  Bank,  554. 
Weld  V.  Nichols,  471. 
Weldeb  v.  Woodruff,  42, 
Weller's  Appeal,  249. 
Welling  V.  Association,  435. 
Wellington  v.   Kelly,  372. 
Wells  V,  Alexandre,  149. 
Wells  V,    Atkinson,    507. 
Wells  V,  Calnan,  595,  596, 
Wells  V.   Foster,   354. 
W^ells  V,  Monihan,  120. 
Wells  V.   National   Life  Ass'n  of  Hart- 
ford, 611. 
Wells  V.  People,  323,  326, 
Wells  V.  Porter.  628. 
Wells  V,  Seixas,  207, 
Wells  V.  Smith,  513, 
Wells  V.  Stout,  382. 
Wells  V.  Tregusan,  505. 
Wells  V.    Wells.    186. 
Wellston  Coal  Co.  v.  Paper  Co.,  588. 


rso 


CASES    CITED 

[The  figures  refer  to  pages] 


Welsh  V.  Gossler,  579. 

Welsh  V.  Hucksetein,  496. 

Welty  V.  Jacobs,  618. 

Wendover  v.  Baker,  157. 

Wenninger   v.    Mitchell,    381,    428. 

Wentvvorth  v.  Day,  47. 

Wentworth  v.  Dows,  588. 

Wentworth  v.  Woodside,  328. 

Werner  v.  Humphreys,  46. 

Werner's  Appeal,  193. 

Wertz  V.  Telegraph  Co.,  404. 

Wescott  V.  Mitchell,  157. 

Wessell   V.  Glenn,   601. 

Wesson  v.  Commonwealth,  ISO. 

West  V.  Anderson,  273,  277. 

West  V.  Bechtel,  514,  571,  572,  583. 

West  V.  Blakeway,  531. 

West  V.   Camden,  380. 

West  V.  Gregg's  Adm'r,  197. 

West  V.  Holmes,  342, 

West  V.  Moore,  220. 

West  V.  Rus.sell,  226. 

West  V.  Seaboard  Air  Line  Ry.,  232. 

West  V.  Van  Pelt,  579. 

Westcott  V.  Mitchell,  159. 

Wester  v.  Casein  Co.  of  America,  42. 

Western  Assur.  Co,  v.  Towle,  633,  634. 
Western   Mfg.    Co.    v.   Cotton   &    Long, 

247. 
Western  Roofing  Tile  Co.  v.  Jones,  .53. 
Western  Union   Tel.   Co.   v.   Blanchard, 

404. 
Western  Union  Tel.  Co.  v.  Carew,  404. 
Western    Union    Tel.   Co.    v.    Chamblee, 

405. 
Western   Union   Tel.   Co.    v.   Cook,   404. 
Western  Union  Tel.  Co.  v.  Griffin,  330. 
Western  Union  Tel.   Co.  v.   Hill,  436. 
Western  Union  Tel.  Co.  v.  Linn,  404. 
Western  Union  Tel.  Co.  v.  Railroad  Co., 

361. 
Western  Union  Tel.  Co.  v.  Semmes,  563. 
Western  Union  Tel.  Co.  v.  Shotter,  255. 
Western    Union    Tel.    Co.    v.    Telegraph 

Co.,  361. 
Western   Union   Tel.   Co.  v.   Tyler,  404. 
Western  Union  Tel.  Co.  v.  Wilson.  330. 
Western  Union  Tel.  Co.  v.  Yopst,  330. 
Western    Wooden-Ware    Ass'n   v.    Star- 
key,  386. 
Western  &  A.  R.  Co.  v.  Bishop,  403. 
Western   &   A.   R.   Co.   v.  Cotton   Mills, 

432. 
Westfall  V.  Parsons,  120. 
Westinghouse  Air  Brake  Co.  v.  Chicago 

Brake  &  Mfg.  Co.,  393. 
Westlake  v.  Adams,  642.    ' 
West  lake  &  Button  v.  St.  Louis,  635. 
Westman  v.  Krumweide,  490. 
Westmeath  v.  Westmeath,  382. 
Weston  V.   Myers,   111. 
Weston  Paper  Co.   v.  Comstock,  360. 
Westropp  V.  Solomon,  641. 
West  Virginia  Trans.  Co.  v.  Ohio  River 

Pipe  Line  Co.,  358. 
West  Virsrinia  Transp.  Co.  v.  Pipe-Line 

Co.,  349,  471. 
Wetherell  v.   Jay,  548. 
Wetherell  v.  Langston,  478,  479. 


Wetmore  v.  Mell,  18. 
Weyerhauser  v.  Dun,  602. 

Whaley  v.  Hinchman,  103. 

Wharton  v.  Mackenzie,  193,  199. 

Wheadon  v.   Olds,   258,   638. 

Wheat  V,  Cross,  31,  39,  42,  587. 

Wheat  V.  Rice,  449. 

Wheaton  v.  East,  209,  211. 

Wheaton  v.  Wheaton,  256,  28L 

Wheelden  t.   Lyford,   328. 

Wheeler  v.  Baars,  2S3. 

Wheeler  v.  Dunn,  294. 

W^heeler  v.  Frankenthal,  100,  115. 

Wheeler  v.  Glasgow,  8. 

Wheeler  v    Marchbanks,  335. 

Wheeler  v.   Pounds,  372. 

Wheeler  v.   Railroad  Co.,  26,  523. 

Wheeler  v.  Reynolds,  117. 

Wheeler  v.   Russell,  327. 

Wheeler  v.  Spencer,  342,  426. 

Wheeler  v.  Stewart,  445. 

Wheelock  v.  Freeman,  19,  601. 

Wheelwright  v.  Wheelwright,  68. 

Whelan  v.  Clock  Co.,  595. 

Whelan  v.  Cook,  183. 

Whelan  t.  Sullivan,  107. 

Whelen  v.  Boyd,  577. 

Whelpdale's  Case,  477. 

W.   11.   Hill  Co.   V.   Gray  &  Worcester, 
308. 

Whinery  v.  Brown,  373. 

Whipple  V.  Foot,  94. 

Whipple  V.   Parker,  100,  119. 

Whitaker   v.    Burrows,   119. 

Whitaker  v.   Groover,  549. 

Whitaker   v.    Whitaker,    135, 

Whitbeck  v.  Van  Xess,  547. 

Whitcomb  v.  Oilman,  330. 

Whitcomb  v.  Hardy,  232. 

Whitcomb  v.  .Toslvn,  221. 

White  V.  Bank.  428,  429. 

White  V.   Barber,   344. 

White  V.    Baxter,   26. 

White  V.  Bigelow,  90. 

White  V.   Bluett,  168. 

White  V.  Buss,  322,  417. 

White  V.  Corlies,  4,  27,  31. 

White  V.   Cotton  AVaste  Corp.,  216. 

White  V.  Dahlquist  Mfg.  Co..  107. 

White  V.   Drew,   131. 

White  V.  Dwver,  338. 

White  V.   Farley,  225. 

White  V.  Fitts,  95. 

White  V.  Foster,  94. 

White  V.  Fox,  602. 

White  V.  Hass,  602. 

White  V.  Heylman,  302. 

White  V.   Holland,  101. 

White  V.  Kuntz,  166,  318. 

White  V.  Lew.  101. 

White  V.   Miller,  70. 

White  V.   Pollock,  66. 

White  V.  Railroad  Co.,  36a 

White  V.  Rintoul,  85. 

White  V.  Ross.  310. 

White  V.  Smith,  507. 

White  V.  Trumbull.  551. 

White  V.  Walker,  533. 

White  V.  W^ilson'a  Adm'rs,  417. 


CASES   CITED 
[The  figures  refer  to  pages] 


731 


White  Sewing  Mach.  Co.  v.  Dakin,  604. 
Wliite's  Heirs  v.  Prentiss'  Heirs,  465. 
WhiteUeld  v.  Longfellow.  300. 
Whiteford  v.  Hitchcock,  52. 
Whitehead  v.  Burgess,  448, 
Whitehead  v.  Greetham,  139. 
WhitehlU  v.  Wilson.  60. 
White  Star  Line  v.  Star  Line  of  Steam- 
ers, 431. 
White  Star  Line  Steamboat  Co.  v.  Mor- 

agne,  68. 
Whiteside  v.  Brawley,  284. 
Whiteside  v.  U.  S.,  179. 
Whitesides  v.  Bank,  602. 
Whitesides  v.  Hunt,  344,  346,  418,  430. 
Whiting  V.  Ohlert,  lOL 
Whiting  V.  Price,  284. 
Whitman  v.  Arms  Co.,  463. 
Wtitmarsh  v.  Hall,  204,  211,  219. 
Whitmarsh  v.  Walker,  94,  95. 
Whitney  v.  Bank,  587. 
Whitney  v.  Boardman,  277. 
Whitney  v.  Clary,  151. 
Whitney  v.  Cook,  616. 
Whitney  v.  Dutch,  192,  201,  208. 
Whitney  v.  Esson,  499. 
Whitney  v.   Gammon,  412. 
Whitney  v.  Hale,  60,  67. 
'  Whitney  v.  Kirtland,  375. 
Whitney  v.  Snyder,  248. 
Whitney  Arms  Co.  v.  Barlow,  243. 
Whitsett  V.   Carney,  530. 
Whittaker,   Ex   parte,  274. 
Whittaker  v.  Improvement  Co.,  293,  303. 
Whittemore  v.  Gibbs,  126. 
Whittemore  v.   Judd    Linseed   &   Sperm 

Oil  Co.,  478. 
Whittier  v.  Collins.  312. 
Whittier  v.  Dana,  80. 
Whittin  V.   Fitzwater,   275. 
Whittingham's  Case,  191. 
Whitty  V.  McCarthy,   369. 
Whulton  V.  Hardesty,  267. 
Wibaux  V.  Live  Stock  Co.,  476,  480. 
Wicker  v.   Hoppock,   319.  / 

Wickes  Bros.  v.  Electric  Light  Co.,  494. 
Wickes'  Lessee  v.  Caulk,  604. 
Wickham  v.  Torley,  186,  188. 
Wickiser  v.  Cook.  309. 
Wicks  V.  Smith,  293,  295. 
Widman  v.  Gay,   569. 
Widoe  V.  Webb,  408. 
Wieland  v.  Kobick,  221. 
Wier  V.   Batdorf,  113. 
Wigent  V.  Marrs,  560.  561,  562, 
Wiggin  V.  Comings,  479. 
Wiggin  V.  Goodwin,  533. 
Wiggins  Ferry  Co.  v.  Railroad  Co.,  468. 
Wigglesworth  v.  DoUison,  495. 
Wigglesworth  v.  Steers,  235. 
Wight  V.  Rindskopf,  356,  365. 
Wilbur  V.  Flood,  293. 
Wilbur  V.  Warren,  135. 
Wilbur  V.  Wilbur,  445,   448. 
Wilcox  V.  Arnold,  175. 
Wilcox  V.   Cline,   26,^7,  38. 
Wilcox  V.  Daniels,  408. 
Wilcox  V.  Draper,  30. 
Wilcox  v.  Edwards,  437. 


Wilcox  V.  Howland,  303,  338, 

Wilcox  V.  University,  271,  286. 

Wilcox  V.  Wood,  495, 

Wilcox  Mfg.  Co.  V.  Brazos.  322. 

Wilcox  Silver  Plate  Co.  v.   Green,   129. 

Wilde  V.  Wilde,  382. 

Wildes  V.  Dudlow,  88. 

Wildey  V.  Collier,  356. 

Wildey  v.  Crane,  86,  370. 

Wiley  V.  Athol,  584. 

Wiley  V.  Baumgardner,  72,  392. 

Wiley  V.  Inhabitants  of  Athol,  586. 

Wiley  V.  Wiley,  93. 

Wilhelm  v.  Eaves,  518. 

Wilhelm  v.  Fagan,  103. 

Wilhelm  v.  Hardman,  194,  213,  217. 

Wilhelm  v.   Voss,  88. 

Wilison  V.  Baltimore,  516. 

Wiikie  V.  New  York  Life  Ins.  Co.,  505. 

Wilkin  Mfg.  Co.  v.  Lumber  Co.,  35. 

Wilkinson  v.  Byers,  164. 

Wilkinson  v.  Coverdale,  139. 

Wilkinson  v.   Heavenrich,  110. 

Wilkinson  v.  Johnson,  604. 

Wilkinson  v.  Lindo,  479. 

Wilkinson  v.   Scott,   70. 
Wilkinson  v.  Sherman,  293. 

Wilkinson  v.  Stitt,  343. 

Wilkinson  v.  Tousley,  342. 

Wilkinson  v.  Williamson,  496. 

WiUard  v.  Eastham,  239. 

Willard  V.  Tayloe,  41,  614. 
Willard  V.  Wood,  447. 

Wilibur  V.  Stoepel,  380. 

Willcox  V.  Jackson,  2.34. 

William  Butcher  Steel  Works  v.  Atkin- 
son, 98. 
Wm.  J.  Lemp  Brewing  Co.  v.  Secor,  25. 
Wm.  Rogers  Mfg.  Co.  v.  Rogers,  633. 
Wm.  Wilcox  Mfg.  Co.  v.  Brazos,  322. 
Williams  v.  Barlield,  326. 
V\'illiams  v.  Bayley,  366. 
Williams  v.  Bemis,  98,  651. 
Williams  v.  Bradley,  477. 
Williams  v.  Bryan,  339. 
Williams  v.   Carpenter,  .546. 
Williams    v.    Carrington,    166. 
Williams   v,  Carwardine,  49, 
Williams  V.  Collins,  310. 
Williams  v.  Flowers,  338. 
Williams  v.  Forbes,  135. 
Williams  v.  Fowle,  372. 
Williams  v.  Griffith,  549. 
Williams  v.  Harrison,  190. 
Williams  v.  Hathaway,  170. 
Williams  v.  Healey,  568.^ 
Williams  v.  Higgins,  68.  139. 
Williams  v.  Inabnet,  235. 
Williams  v.  Kent,  490. 
Williams  v.  Kerr,  280,  292. 
Williams  V.  Lake,  104. 
Williams  v.  Latham,  66. 
Williams  v.  Leker,  85. 
Williams  v.  Mitchell,  620. 
Williams  v.  Moore,  174. 
Wijliams  v.  Paine,   182. 
Williams  v.  Pasquali,  217. 
Williams  v.  Paul.  333. 
Williams  v.  Railway  Co.,  49. 


732 


CASES   CITED 
[The  figures  refer  to  pages] 


Williams  v.   Robinson,   111,  133. 
Williams  v.   Schatz,  66. 
Williams  v.  Shackelford,  184. 
Williams  v.  Sopieha,  227. 
W^illiams  v.  Sorrell,  462. 
Williams  v.  Spurr,  268,  273. 
Williams  \.  Tiedemann,  418. 
Williams  v.  Wentworth,  226. 
Williams  Mfg.  Co.  v.   Brass  Co.,  542. 
Williams  &  Bro.  v.  Branniug  Mfg.  Co., 

369. 
Williamson  v.  Baley,  417. 
Williamson  v.   Brandenberg,  332. 
Williamson  v.  Cline,  599. 
Williamson  v.  McClure,  505. 
Williamson  v.  Postal  Telegraph  Co.,  434, 

435. 
Williamson  v.  Railroad  Co.,  358. 
Williamson-Halsell,  Frazier  Co.  v.  Ack- 

erman,  299. 
Willing  V.  Peters,  162,  17L 
Willingham  v.  King,  184. 
Willis  V.  Gammill,  161. 
Willis  V.   Terry,   70. 
Willis  V.  Twambly   191,  205.  463. 
Willmering  v.  McGaughey,  503. 
Willoughby  v.  Willoughby,  519. 
Wills  V.  Brown,  87. 
Wills  V.  Carpenter,  36. 
Willson  V.  Baltimore,  516. 
Willson  V.  Force,  647. 
Willwerth  v.  Leonard,  228. 
Willy  V.  Robert,  105. 
Wilmot  V.  Lyon.  274. 
Wilson  V.  Barker,  638. 
Wilson  V.  Bauman,  497.     - 
Wilson  V.  Bevans,  86. 
Wilson  V.  Carpenters'  Adm'r,  283. 
Wilson  V.  Carson,  461. 
W^ilson  V.  Cooper,  508. 
Wilson  V.  Darragh.  209. 
Wilson  V.  Doran,  555. 
Wilson  V.  Edmonds,  170,  17L 
Wilson  V.  Gerhardt.  469. 
Wilson  V.  Giiyton,  47. 
Wilson  V.  Hundley.  291. 
Wilson  V.  Insurance  Co.,  256. 
Wilson  V.  Kilburn,  337. 
Wilson  V.  McCormick.  477. 
Wilson  V.  Marlow,  508. 
Wilson  V.  Martin,  100.  101. 
^'ilson  V.  Milligan,  332. 
Wilson  V.  Morton,  91. 
Wilson  V.  Oldham,  224. 
Wilson  V.  Powers,  157,  490. 
Wilson  V.  Railjvay  Co.,  613. 
Wilson  V.  Roots,  505,  579. 
Wilson  V.  Strugnell,  427. 
Wilson  V.  Wallace,  478. 
Wilson  V.  White,  274. 
Wilson    V.    Wilderness    Poultry    Farm, 

119. 
Wilson  V.  Wilson,  506. 
Wilson  V.  Winter,  332. 
Wilson's  Assignee  v.  Beam,  534. 
Wilson   S.  M.  Co.  v.  Curry,  303. 
Wilstach  V.  Ilevd,  110. 
Wilton  V.  Tazwell,  628. 
Wimer  v.  Smith,  289. 


Wiuans  v.  Manufacturing  Co.,  138. 

Winberry  v.  Koonce,  462. 

Winch  V.  Ice  Co.,  517. 

Winchell  v.  Cary,  333. 

Winchell  v.   Noyes,   648. 

Winchester  v.  Howard,  250. 

Winchester  v.  Nutter,  342. 

Winchester  Electric  Light  Co.   v.  VeaL 
424. 

Wind  V.  Her,  434. 

Windbiel  v.  Carroll,  637. 

Windell  v.  Hudson,  86. 

Windham  v.  Doles.  524.  526. 

Windhill  Local  Board  v.  Vint,  367. 

Windrauller  v.  Pope,  558. 

Wineland  v.  Insurance  Co.,  266. 

Winfield   v.   Dodge,  332,  333. 

Winfield  Nat.  Bank  v.  Croco,  299. 

Wing  V.  Chase,  65. 

Wing  V.  Mill,  173. 

Wing  V.  Peck,  72. 

Wingate  v.  Neidliuger,  545. 

Winn  V.  Bull.  36,  53. 

Winnebago  Mills  v.  Travis,  551. 

Winpenny  v.  French,  357. 

Winslow  V.  Railroad  Co.,  373. 

Winslow  V.  Stokes,  618. 

Winston  v.  Young,  281. 

Winters  v.  Cherry,  99. 

Winward  v.  Lincoln,  435. 

Wirebach's  Ex'r  t.  Bank.  23.3. 

Wisconsin,  I.  &  N.  R.  Co.  v.   Braham, 
149. 

Wise  V.   Foote,  306. 

Wise  V.  Miller,  30. 

Wislizenus  v.  O'Fallon,  174,  175. 

Wisner  v.  Bardwell,  407. 

Witi)eck  V.  Waine,  70.  600. 

Witherby  v.  Mann,  616. 

Witherow  v.  Witherow,  509. 

Withers  v.  Greene,  588. 

Withers  v.  Reynolds,  573. 

Withers  v.  Richardson,  90. 

Witte  V.  Fishing  Co.,  242. 

Wit*e  V.  Williams.  605. 

Wittenberg  v.  Mollyneaux.  387. 

Wojahn  v.  National  Union  Bank  of  Osh- 

kosh,  18.  20. 
Wolcott  V.  Mount,  580.  585. 

Wolcott  V.  Patterson,  383. 

Wolf  V.  Fink.  546. 

Wolf  V.  Marsh,  562. 

Wolf  V.  Wolf.  92. 

Wolfe  V.  Howes,  597,  648. 

Wolff  V.  Campbell,  500. 

Wolff  V.  Koppel,  87. 

Wolffe  V.  Eberlein,  174. 

Wolford  V.  Powers,  134,  135,  140. 

Wollcott  V.  Heath,  346. 

Welters  V.  Thomas,  529. 

Wolverton  v.  Davis.  89. 

Womack  v.  Womack,  217. 

Wonsettler  v,  Lee,  119. 

Wood  V.  Allen,  490.  509. 

Wood  V.  Boynton.  258.  254. 

Wood  V.  Callaghan,  33. 

Wood  V.   Chetwood,  67. 

Wood  V.  College,  504. 

Wood  V.  Dodge,  84. 


CASES   CITBD 
[The  figures  refer  to  pages] 


733 


Wood  T,  Faut,  619. 

Wood  T.  Gamble,  618. 

Wood  T.  Hitchcock,  555. 

Wood  y.  Lock  Co.,  248. 

Wood  V.  Losey,  196.  ' 

Wood  V.  McCann,  355. 

Wood   V.    Moriarty,    86,    447,  448,   523, 

529. 
Wood  V.  New  York,  464. 
Wood  V.  Paper  Co.,  518. 
Wood  V.   Partridge,  462. 
Wood  V.  Roeder,  257. 
Wood  V.   Sheldon,  587.   641. 
Wood  V.  Steele,  600,  602,  605. 
Wood  V.  Whitehead  Bros.  Co.,  388. 
Wood  Mach.  Co.  v.  Gaertner,  492. 
Woodbridge  v.  De  Witt,  285. 
Woodbiirn  v.  Woodburn,  151. 
Woodbury  v.  Woodbury,  307,  309. 
Wooddy  V.  Insurance  Co.,  77. 
Wooden  v.  Shotwell,  420. 
Woodham  v.  Allen,  366,  428. 
Woodland  v.  Newhall's  Adm'r,  445. 
Woodle  V.  Whitney,  580. 
Woodman  v.  Segar,  486. 
Wood  Reaping  &  Mowing  Mach.  Co.  v. 

Smith,  542,  543. 
Woodruff  V.  Dobbins,  531. 
Woodruff  V.  Hinman,  407. 
Woodruff  V.  Scaife,  85. 
Woods  V.   Roberts,  308. 
Woodson  V.   Barrett,  463. 
Woodstock   Iron   Co.   v.    Extension   Co., 

317,  359. 
Woodward  v.  W^ashburn,  442. 
Woodworth  v.  Anderson,  602. 
Woodworth  v.  Bank.  602. 
Wooldridge  v.  Hancock,   118. 
Wooldridge  v.  Stern,  98. 
Wooley  V.   Drew,  312. 
Woolner  v.  Hill,  563. 
Wootan  T.  Hasket,  342. 
Wooten  T.  Hinkle,  319. 
Wooten  V.  Walters,  569. 
Wooten  T.   Wilcox,   87. 
Worden  v.  Sharp,   100. 
Work  V.  Cowhick,  110. 
Workman  v.  Campbell,  355. 
Works'  Appeal,  300. 
Worley  v.   Sipe,  96,  151. 
Wornock  v.  Loar,  196. 
Worrell  v.  JPorsyth,  492. 
Worth  V.  Case,  140. 
Worth  V.   Patton,  119. 
Worthington,  In  re,  354. 
Worthington  v.  Beeman,  58. 
Worthington  v.   Worthington,  225. 
Worthy  v.  Jones,  98. 
Wrexham,  etc.,  R.  Co.,  In  re,  643. 


Wr 
Wr 
Wr 
Wr 
Wr 
Wr 
Wr 
Wr 
Wr 
Wr 


_  It  T.  Brown,  274. 
ght  V.  Crabbs,  397,  417. 
ght  V.  Davenport,  581,  588. 
ght    T.    Dickinson,    641. 
ght  V.   Graham,    183. 
ght  V.  Hughes.  243. 
ght  V.  I^eonard,  237. 
ght  V.  McCampbell,  596. 
ght  T.  Market  Bank,  225. 
ght  V.  Nulton.  118. 


Wright  V.  Remington,  303. 

Wright  T.  Rindskopf.  367. 

Wright  V.  Ryder,  388. 

Wright  y.  Terry,  449. 

Wright  V.  Waller,  233,  234. 

Wright  V.  Wright  143,  225. 

Wristen  v.   Bowles,  35. 

Wroth  T.  Johnson,  342,  363. 

Wuller  V.  Chuse  Grocery  Co.,  205. 

Wulschner  v.  Ward,  533. 

Wunderle  v.  Wunderle,  182. 

Wyant  t.  Lesher,  377. 

Wyckoff  V.   Mickle.  112. 

Wveth  V.  Walzl,  293. 

Wyley  v.  Bull,  21. 

Wyman  v.  Winslow,  556. 

Wynkoop  v.  Cowing,  579. 

W.  &  B.  R.  Co.  V.  Lehman.  330. 

W.  &  H.  M.  Goulding  v.  Hammond,  45. 

X 

Xenos  T.  Wickham,  40. 
Xenoa  v.  Wickman,  66. 


Yakima  Valley  Bank  v.  McAllister,  248. 
Yale  V.  Dederer,  239. 
Yale  V.  Flanders,  65. 
Yates  V.  Boen,  223. 
Yates  V.  Donaldson.  478,  628. 
Yates  V.  Foot,  480. 
Yates  V.  Robertson,  325. 
Yates  V.   Valentine,   616. 
Y'ates'  Adm'rs  v.  Hollingsworth,  174. 
Yazoo  &  M.  V.  R.  Co.  v.  Fulton,  615. 
Yeager  v.  Musgrave,  604. 
Yeager  y.  Yeager,  491. 
Yeager  Mill.  Co.  v.  Lawler,  274,  279. 
Yellow  Poplar  Lumber  Co.  v.  Rule,  98. 
Yellowstone  Kit.  v.  State,  348. 
Yerrington  v.   Green,  648. 
Y'^errington  v.  Greene,  474,  596, 
Yonoski  y.  State,  330. 
York  V.   Hinkle,  303. 
York  V.  Orton,  530. 
York  V.  Washburn,  642. 
York  &  M.  Liuu  3-.  Co.  v.  Winans,  360. 
Youn  V.  Lamuut,  234. 
Y'oung  y.  Adams,  545. 
Young  V.  Arntze,  293,  294. 
Young  y.  Chicopee,  648. 
Young  V.  Cole,  641. 
Young  y.  Dake,  101. 
Young  y.  Daniels,  513,  514. 
Young  y.  Drake.  100. 
Young  V.  Herman,  20. 
Young  y.  Hill,  337,  33a 
Young  y.  McKee,  213. 
Young  V.   Paul,  236. 
Young  y.  Stevens,  225,  230. 
Young  V.  Thomson,  305. 
Young  y.  Wheeler,  93. 
Young  y.  Young.  281. 
Yonntr  Co.  y.  Snringor,  245,  246. 
Young  Bros.  Mach.  Co.  v.  Young,  584. 
Young   Men's   Christian   Ass'n   of  Port- 
land y.  Croft.  450, 


734 


CASES   CITED 
[Th«  figures  refer  to  pages] 


Young's  Estate,  In  re,  20. 
Younge  t.  Guilbeau,  65. 
Youngs  V.  Public  Schools,  450. 


Zabriskie  v.  Railroad  Co.,  464,  585. 

Zabriskie  v.  Smith,  459. 

Zabriskie  t.  Woodruff,  185. 

Zaleski  v.   Clark,  541. 

Zarcharie  v.  Franklin,  111. 

Zeigler  v,  Hughes,  269,  307,  309. 

Zeigler    v.     Illinois    Trust    &    Saringi 

Bank,  311,  349. 
Zeigler  v.   Shuler,  311. 
Zell  V.  Insurance  Co.,  77. 
Zell  Guano  v.  Emry,  318. 


Zeltner  v.  Irwin,  51,  52. 
Zeratello  t.   Hammerstein,  436. 
Zetterhind   v.   Texas   Land   &  Coal   Co. 

458. 
Zeuske  t.  Zeuske,  120. 
Ziegler  t.  McFarland,  491. 
Ziegler  v.  Shuler.  308. 
Zimmerman  v.  Brown,  41. 
Zimmerman  v.  Zimmerman,  22. 
Zimmler  v.  Water  Co.,  70. 
Zoebisch  v.  Von  Minden,  155. 
Zohrlaub  v.   Mengelberg,  505. 
Zoiich   V.    Parsons,    189,    190,    191.   204 

205. 
Zuck  T.  McCIure.  558. 
Zucker  v.  Karpeles,  274. 
Zundell  t.  Gess,  182. 


INDEX 


[the  figures  befeb  to  pages] 


A 

ABANDONMENT  OF  CONTRACT, 

By  mutual  consent,  523. 

By  one  party,  breach,  556. 

Contract  created  by  law  after,  64G,   650. 

Of  wife  by  husband,  authority  of  wife  to  bind  husband,  645k 

ABSOLUTE  PROMISES, 
What  are,   565. 

ABUSE   OF  PROCESS, 
See  Duress. 

ACCEPTANCE, 

See  Frauds,    Statute  of;    Offer. 
Forms  of,  15-17. 
Necessity  of,  25,  26. 
Contracts  by   correspondence,   31. 
Necessity   for  communication   of    27-34. 
Must  be  absolute,  34. 

And   identical  with   terms   uf   offer,  34. 
Character  of,  34. 
Manner  of,  37. 
Place  of   37. 
Time  of,  37 

After   lapse   of  offer,   44. 
Varying  from  offer,  36,  37. 
When  complete,  27. 
Communication  of,  27-34. 

Necessity  of,  27-31. 

Contract   by  correspondence,  31-34. 
Communication  by  conduct,  18,   19. 
Loss  or  delay  of  letter  or  telegram,  32. 
Effect  of,  25,  26. 

By  one  of  several  parties,  revocation  of  offer,  89. 
Of  offer  to  the  public  generally,  47. 
Of  deed,  67. 
Of  goods  sold,  127. 

ACCIDENT. 

See  Mistake. 
Act  of  God,  537. 

Alteration  of  instrument  by,  604. 
Inherent  defects  in   property  carried  by  carrier,  537. 

ACCORD  AND  SATISFACTION, 

Discharge  by,  614. 
Consideration,   151,   154,   165,    615. 
Clabk  Cont.(3d  Ed.)  (735) 


«Jb  INDEX 

[The  flcuree  refer  to  paces] 

ACQUIESCENCE, 

See   Ratification. 
Acceptance  by,  19. 

Ratification  of  infant's  contract  by,  210. 
In  breach  of  condition,  5S4. 

ACTION, 

Who  may  sue  and  be  sued,  see  Operation  of  Contract;    Quasi  Contract. 
Remedies  on  breach  of  contract,  606. 
Damages,  GOT. 
Specific  performance,  611. 
Injunction,  613. 

Discharge  of  right  of  action,  614. 
By  consent  of  parties,  614. 
Release,  614. 

Accord   and   satisfaction,   615. 
By  judgment,  617. 

Trapse  of  time,  statute  of  limitations,  619, 
Champerty  and  maintenance,  371. 
By  or  against  United   States,   179,  180. 
Foreign  states  or  sovereigns,  181. 
Aliens.  181. 
Convicts,  183. 
Married  women,  236-240. 
By  attorney  for  services,  184. 

ACT  OF  GOD, 
Effect,  536. 

ADMINISTRATOR, 

See  Executors  and  Administrators. 

ADVERTISEMENT, 
Offers  by,  47-50. 
Acceptance  and  revocation  of  offer,  48. 

AFFECTION, 

As  a  consideration,  135. 

AFFIRMANCE, 
See  Ratification. 

AGENCY, 

Unlawful  agreements  by  agent,  378. 

Rights  of  factors,  brokers,  and  other  agents,  430. 
Authority  to  bind  government,  179. 
Creation  of  contractual  relations  through  agents,  439. 

AGREEMENT, 

See  Acceptance;    Mistake;    Offer;    Reality  of  Consent;    Parties  to  Con- 
tracts. 
Defined,  3. 
Essentials,   3-5. 

Distinguished   from  contract,  8. 
V^oid,  voidable,  and  unenforceable,  112,  113. 

ALIENS, 

Who  are,  181. 
Power  to  contract,  182. 
Alien  enemies,   182. 
Actions   by  or  against,  182. 

ALTERATION, 

Of  contract  by  substituted  agreement,  52G, 

Consideration,   525. 
Statute  of  frauds,  5o3, 


INDEX  737 

[The  figures  refer  to  pages] 

ALTERATION— Continued, 

Of  instrument  as  a  discharge,  600. 

By  whom,  604. 

Intent,  604. 

Consent,  605. 
Of  law,  as  a  discharge,  593. 

As  bearing  on   legality  of  agreement,  438. 
Filling  blanks  in  deed,  69. 

APPLICATION, 

Of  payments,  548. 

APPRENTICES, 

Death  of  master,  474. 

ARBITRATION, 

Provisions  for,  legality,  367. 

ARMY, 

Enlistment  by  infant,  188.  / 

ASSAULT  AND  BATTERY, 
Agreement  to  commit,  317. 

ASSIGNMENT  OF  CONTRACT, 
In  general,  452. 

Of  liabilities  by  act  of  party,  453. 
Of  rights  by  act  of  party,  at  law,  454-467. 
Novation,  456. 

Recognition   of  equitable   assignment  at  law,  457. 
Equitable  assignment,  457-465. 
What  is  assignable,  458. 
Partial  assignment,  460. 
Form  of  assignment,  461. 
Notice  of  assignment,  462. 

Title  of  assignee,   equities  and   defenses,  463. 
Priority   between   assignees,  465. 
Under   statutes,   465. 
I  Customs  of  the  law  merchant,  466. 

Bills  of    exchange   and   promissory   notes,   466. 
By  operation  of  law,  467-474. 

Of  obligations  ou   transfer  of  interests  in  land,  467. 
By  marriage,  472. 

By  death,  473.  ] 

By  bankruptcy,  467. 
Of  patent  or  copyright,  78. 
Of  salary  or  pension  by  officer,  354. 

ASSIGNMENTS, 

Voluntary  assignments  by  infant,  188. 
ATTORNEYS, 

Power  to  contract,  191,  325. 

Champerty   and    maintenance,    370. 

Undue  influence  over  client,  309. 
AUCTION  SALES, 

Advertisement,  51. 

For  making  memorandum  to  satisfy  statute  of  frauds,  112. 

As  contracts  within  statute  of  frauds,  123. 

Effect  of  fraud,  318. 
AUTHORITY, 

See  Agency. 
AVOIDANCE, 

See  Discharge  of  Contract;    Drunken  Person ;    Duress;    Fraud;    Infants;    In- 
sane Persons;    .Misrepresentation;    Mistake;    liescissiun;    Undue  Influence. 
Clakk  CoN'r.(3u  Ed.) — 47 


738 


INDEX 
[The  figures  refer  to  pagea] 


B 

BAILME.NT, 

See  Carriers, 
Gratuitous,   139. 

BANKRUPTCY, 

Frauds  ou  creditors,  317. 

Assignment  by,  467. 

As  a  discharge  of  contract,  606. 

Promise  to  pay  debt  after  discharge  in  bankruptcy,  174. 
BASTARDS, 

Bond  for  support  by  infant,  188. 
BENEFITS, 

See  Quasi  Contract. 

Acceptance  of,  as  affecting  right  to  rescind  for  fraud,  294. 
iBETS, 

See  Unlawful  Agreements. 

BIDDING, 

See  Auction   Sales. 

BILLS  AND  NOTES, 

Necessity   for  written  form,  77. 

For  acceptance  of  bill,  77. 
Consideration,  138. 
Execution  on  Sunday,  331. 
Transfer,  466. 

Bona  fide  purchasers,  422. 

Of  notes  of  drunken   persone,  235, 
Discharge  by  agreement,  523. 
Waiver  of  discharge.  17.3. 
Rescission  for  fraud,  2U7. 
Alteration,  600. 
Usury,  333. 

Effect  of  illegality.  421. 
Payment  of  check  by  mistake,  639. 
Payment  by,   546. 

BILLS  OF  LADING, 

Implied  conditions,  536. 

BLANKS. 

See  Alteration. 
E.\ecution  of  deed  in  blank,  69. 

BOND, 

See  Contracts  under  Seal. 
Defined,  62. 
Delivery  in  escrow,  67. 
Assignment.  466. 
Alteration,  600. 

BOOKS, 

Entries  in,  as  memoranda  required  by  statute  of  frauds,  102. 
BOYCOTTS, 

See  Unlawful  Agreements. 

BREACH  OF  CONTRACT, 

See  Impossibility, 
As  a  discharge,  556. 
P'orms  of  breach,  557. 
Renunciation  of  contract,  557. 


INDEX  739 

[The  figures  refer  to  pages] 

BREACH  OF  CONTRACT— Continued, 

Impossibility   of  performance  created  by  act  of  party,  562. 
Failure  of   performance,   564-574. 

Whether    promise    is    dependent   or    independent,    565. 
Absolute  promises,  565. 
Divisible  promises,  568. 
Subsidiary  promises,  574. 

Condition   and   warranty   distinsuished,   261,   582. 
Conditional  promises,  in   general,   575. 
Breach   of   concurrent   condition,    575. 
Breach  of  condition  precedent,  576. 
Caused   by  other  party,   586. 
Suspensory  conditions,  576. 
Failure  of  consideration,  586. 
Executed  consideration,  589. 
Executory  contracts  of   sale,  480. 
Executed   contracts   of   sale,   481. 
Condition  precedent  in  narrower  sense,  582. 
Waiver  or  acquiescence  in  breach  of  condition,  584. 
Remedies  on  breach,  606. 

Recovery  of  money  paid,  590. 
Damages,  608-611. 

Specific  performance,  611.  ' 

Injunction,  613. 

Discharge  of  right  of  action,  614-622. 
By  consent  of  parties,  614. 
Release,  614. 

Accord  and  satisfaction,  615. 
By  judgment,  617. 

By  lapse   of  time,   statute  of  limitations,  619. 
Liability  of  third  person  for  inducing  breach,  441. 

BREACH  OF  MARRIAGE  PROMISE, 

Death  after  breach,  action  by  executor,  474. 

Damages,  608.  ^ 

BRIBERY. 

See  Unlawful  Agreements. 


CANCELLATIOIn, 

See  Discharge  of  Contract. 

CAPACITY   OF  PARTIES, 

See  Parties  to  Contracts. 

CARRIERS, 

Unlawful  agreements  by,  in  general,  r?58. 

Limiting  liability,  40,'}. 
Conditions  implied   in  contract,  536. 

CAVEAT  EMPTOR, 

See  Fraud. 

CERTAINTY, 

As  to  parties,  6. 

As  to  rij-hts  and  liabilities,  7. 

Discussed,  54. 

Id  certum  est  ^uod  certum  reddi  potest,  55. 

Sufficiency  of  memorandum,  statute  of  frauds,  101,   131. 

Vague  promise,  no  consideration,  108. 

CHAMPERTY  AND  MAINTENANCE, 
Defined,  370. 
,  Validity  of  agreements,  371-376. 


740  INDEX 

[The  figures  refer  to  pages] 

CHANGE, 

See  Alteration. 

CHARITIES, 

Legality  of  Sunday  contract  as  work  of  charity.  329. 
CHOSES  IN  ACTION, 

See  Assignment  of  Contract, 

CLASSIFICATION, 

Of  contracts,  58. 

COMBINATIONS, 

See   Unlawful  Agreements. 

COMMUNICATION, 
Of  intention.  4. 
Of  offer,  necessity,  22. 
By  conduct.  IS. 

Terms  of  offer  partly  uncommunicated,  23. 
Of  acceptance,  27-34. 
Of  revocation  of  offer,  42. 

COMPOSITION   WITH   CREDITORS, 
Consideration,  1G5. 
Effect  of  fraud,  257. 

COMPOUNDING   CRIME, 
Validity  of  agreements,  366. 

COMPOUND  INTEREST, 
Usury,  333. 

COMPROMISES, 

See  Composition  with  Creditors. 
Consideration,  1G5,  153. 

COMPULSION, 
See  Duress. 

CONCEALMENT, 
See  Fraud. 

CONCURRENT  CONDITIONS, 

See  Conditions. 

CONDITIONS, 

See  Breach  of  Contract;    Impossibility. 
As  effecting  mutuality,  146,  148. 
Distinguished  from   warranties,  261,  582. 

From  misrepresentation,  261. 
Whether  promises  are  dependent  or  independent,  565. 
Conditional   promises,   in   general,   575. 
Conditions  subsequent,  534. 
Conditions  concurrent,  575. 
Conditions  precedent,  576. 

Suspensory   conditions,  576. 

Vital   conditions.   578. 

Executory   contracts  of  sale,  580. 

Executed  contracts  of  sale,  581. 

Narrower  sense  of  condition  precedent,  582. 
Waiver  or  acquiescence  in  breach  of  condition,  584. 
Conditional  acceptance,  lapse  of  offer,  44. 
Delivery  of  deed  in  escrow,  67. 
Precedent  to  rescission  of  contract  for  fraud,  204. 
Agreements  for  arbitration  before  action  on  contract.  368. 
Conditional  payment  by  negotiable  or  nonnegotiable  instrument,  540. 


INDEX  741 

[The  figures  refer  to  pagea] 

CONDUCT, 

See  Estoppel ;  Fraud. 
Communication  by,  18-22. 
Acceptance  by,  27-34. 

CONFIDENTIAL  RELATIONS, 

See  Fraud;    Misrepresentation;    Undue  Influence. 

CONFLICT  OF  LAWS, 
Statute  of  frauds,  121, 
Legality  of  contract,  432-437. 

CONSENT, 

See  Agreement. 
Reality  of.  244. 

To  alteration  of  instrument,  605. 
Discharge  of  right  of  action  by,  614. 

CONSIDERATION, 

See  Unlawful  Agreements;    Discharge  of  Contract. 
Defined  and  explained,  58,  133-137. 
Valuable,   distinguished  from  good,   135. 
Distinguished  from  motive,  135. 
Distinguished  from   moral   obligation,  136, 
Necessity  for,  in  general,  137. 

Negotiable  instruments,  138. 

Contracts  under  seal,   72. 
Presumption  of,  139. 
Adequacy,  140-144. 

In  equity.  144. 
Sufficiency  or  reality,  144. 
Forms,  145. 
Mutual  promises,  145. 
Voluntary  subscriptions,  147. 
Contingent  and  conditional  promises,  148. 
Forbearance  to  exercise  a  right,  150. 

Compromises,  153. 

Time  of  forbearance,  152. 

To  do  what  one  cannot  legally  do,  153. 
Gratuitous  bailment,   139. 
Gratuitous  employment,  139. 
Natural  affection,  135. 
Moral  obligation,  136. 
Impossible  promises,  166. 
Vague  promises,  168. 
Doing  or  promising  what  one  is  bound  to  do,  156-166. 

Mutual  discharge  and   substituted   agreement,   158. 

Promise  to  third  person  to  perform  existing  contract,  160. 

Part  payment  in  satisfaction  of  debt,  161-166. 
Gift  of  residue,  163. 
Release  of  residue  under  seal,  162. 
Consideration  for  release  of  residue,  163. 

For  discharge  of  unliquidated  claim,  164.     ' 

Accord   and  satisfaction,  165. 

Compromise,  164. 

Composition  with  creditors,  165. 
Legality,  1C8. 
Partial  illegality,  405. 
In  respect  of  time,  1G9-176. 

Executory  and  executed,  169. 

Past  consideration,  170. 


742  INDEX 

[The  figures  refer  to  pages] 

CONSIDERATION-Continued, 
Failure  of,  586. 

Executed,  589. 

Recovery  of  money  paid,  637. 
Expression  in  memorandum,   statute  of  frauds,  108,  131. 
Not  necessary  for  ratification  of  infant's  contract,  20S. 
Return  of,  on  avoidance  of  contract,  by  infant,  lil3. 

By  insane  person,  232. 

By  drunken    person,   235. 

For  fraud,  2U4. 
For  discharge  of  contract,  524, 

CONSPIRACY, 

Unlawful  agreements,  317. 

CONSTRUCTION, 

See  Interpretation  of  Contract, 

CONTINGENT   FEES, 

Champertous  agreements,  373. 

CONTRACT, 

See  specific  heads. 
Defined,  1,  2. 

Executory  and  executed,   1. 
As  a  legal  conception,  2-14. 

Concurrence  of  agreement  and  obligation,  7-11. 
Essentials,  14. 
Classification,  58. 

Void,   voidable,  and   unenforceable,  12,  13. 
Reduction  to  writing,  52. 
Unilateral,  17. 
Bilateral,  17. 
By  correspondence,  31-34. 

CONTRACTS  OF  RECORD, 
Defined,  60. 
Quasi  contract,  10. 

CONTRACTS  UNDER   SEAL, 
In  general,  62. 

Terms,  "deed,"  "bond,"   "specialty,"  and  "covenant,"  62,  63. 
How  m"ade,  63-69. 
Delivery  and  acceptance,  65-69. 
Necessity  for  acceptance,  24. 
Revocation  of  offer,  40. 
Escrow,  63,  67-69. 
Execution  in  blank,  69. 
Deed  poll  and  indenture,  69. 
Characteristics,  69-74. 

Estoppel,  70. 

Merger  of  simple  contract,  71. 

Limitation  of  actions,  71. 

As  dispensing  with   necessity  for  consideration,  72-74. 
Exceptions  at  common   law,   72. 
Exceptions  in  equity,   72. 
When  necessary,  72. 
Use  of  seal  by  corporation,  241. 
Communication  of  offer,  24. 
Proof  of,  484,  485. 
Release  iinder  seal,  162. 
Form   of  discharge  by  agreement,  53L 
Action  by  third  person,  452.. 


INDEX  743 

[The  figures  refer  to  pagei] 

CONTRIBUTION, 

Between  joint  debtors,  481,  627. 
Between  co-sureties,  481,  627. 
Between  tort  feasors,  629. 

CONVEYANCES, 

See  Contracts  under  Seal. 
Necessity  of  deed,   75. 
Necessity  for  written  form,  78. 
Not  a  contract,  8. 

CONVICTS, 

Power  to  contract,  183. 

Effect  of  conviction  of  husband  on  right  of  married  woman  to  contract,  238. 
COPYRIGHT, 

Assignment,  78. 

CORNERING  THE  AIARKET, 

Validity  of  combinations,  397. 

CORPORATIONS, 

Capacity  to  contract,  240. 

What  contracts  are  authorized,  242. 

Ultra  vires  contracts,  242. 

Mode  of  contracting,   241. 

Use  of  seal,  74,  241. 
Implied  contracts,  241. 
Ratification  of  contracts,  241. 

Records  of,  as  memorandum  required  by  statute  of  frauds,  103. 
Misrepresentations  in  sale  of  shares,  268. 
Unlawful  agreements  by  officers  of,  379. 

CORRESPONDENCE, 

Revocation  of  offer  by,  42. 
Acceptance  of  offer  by,  31-34. 
Payment  by  mail,  546. 

COURTS, 

Agreements   ousting  jurisdiction,   367. 
COVENANT, 

See  Contracts  under  SeaL 

Defined,  63. 

Running  with  the  land,  468. 
COVERTURE, 

See  Married  Women. 

CRIME, 

Agreements  to  commit,  316. 
Compounding,   36G. 

CRIMINALS, 

See  Convicts. 

CROPS, 

Sale  of,  statute  of  frauds,  93,  126. 
CUSTOM  AND  USAGE, 
Evidence  of,  495. 

To  add  a  term,  495. 

To  explain  terms,  495. 

Requisites   of,  496. 

D 

DAMAGES, 

For  breach  of  contract,  608. 
Remote  and  proximate,  608. 


744  INDEX 

[The  figures  refer  to  pag»8] 

DAMAGES— Continued. 

Vindictive,  punitive,  or  exemplary,  610. 
Assessment  by  parties,  610. 
Speculative  profits,  611. 
Penalty  or  liquidated  damages,  515. 

DEATH, 

Of  party  before  acceptance  of  ofier.  lapse,  46. 
Of  parties  after  delivery  of  deed  in  escrow,  67. 
Of  infant,  avoidance  of  contract  by  heirs,  202. 
Of  joint  promisor,  477. 
Of  joint  promisee,  479. 
Assignment  by,  473. 
As  discharge  of  contract,  597. 
DECEIT, 

See  Fraud. 

DEED, 

See  Contracts  under  SeaL 
Contracts  under  seal,  62. 
Deed  poll  and  indenture,  69. 
Execution  in  blank,  69. 
Delivery,  65. 

Escrow,  67. 

Statute  of  frauds,  113. 
Alteration,   600. 

Kf  vocation   before   acceptance,  40. 
For  conveyance  of  land,  78. 
Parol   evidence,  487. 
Estoppel  by,  70. 

DEFAULT, 

See  Discharge  of  Contract. 

DEFINITENESS, 

See  Certainty. 
DELAY, 

See  Laches. 

DELICT, 

See  Tort. 

DELIVERY, 
Of  deed,   65. 
Of  written  contract,  53. 
Of  Sunday   contract,  331. 
Of  goods  under   statute  of  frauds,  127. 
Assignment  by  delivery,  4*36. 
Parol  evidence,  487. 

DELUSION, 

See  Insane   Persons. 

DEMENTIA, 

See  Insane   Persons. 

DEPENDENT   PROMISES, 
See   Conditions. 

DETERMINATION   OF  CONTRACT, 

See  Discharge  of  Contract. 

DISABILITIES, 

See  Limitation  of  Actions;    Parties  to  Contracts. 

DISAFFIRMANCE, 
See  Rescission. 


INDEX  745 

[The  figures  refer  to  pages] 

DISCHARGE  OF  CONTRACT, 

See  Accord  and  Satisfaction. 
In   geaeral,   522. 
Bj  agreement,  523-538. 

Waiver,  cancellation,  or  rescission,  523. 
Substituted  agreement,  158,  520. 
Change  of  terms,  526. 
Novation,  520. 
Form  of  discharge  by  agreement,  531. 

Provisions    for    discharge    contained    in    contract,    conditions    subsequent, 
534-538. 
Nonfulfillment  of  term,  535. 
Occurrence  of  specified  event,  536. 
Act  of   God,   537. 
Perils  of  the  sea,  537. 
Discharge  optional   with  notice,  537. 
By   performance,   539. 
Payment,  544. 

By  negotiable  or  nonnegotiable  paper,  G4G. 
Application  of  payments,  548. 
Tender,  552. 
By  breach,  556-590. 

Breach  caused   by  other  party,  586. 

Forms  of  breach,  557. 

Renunciation    of   contract,    557. 

Impossibility  of  performance  created  by  act  of  party,  562. 

Failure  of  performance,  564-590. 

Dependent    or    independent    promises,    565. 
Absolute  promises,  565. 
Divisible  promises,  568. 
Subsidiary  promises,  574. 

Condition  and  warranty  distinguished,  261,  582. 
Conditional  promises  in  general,  575-590. 
Breach  of  concurrent  condition,  575. 
^  Breach   of  condition   precedent,  576. 

Suspensory  conditions,  576. 
Vital   conditions,    578. 
Failure  of  consideration,  586. 
Executory  contracts  of  sale,  5S0. 
Executed  consideration,   589. 
Executed  contracts  of  sale,  581. 
Conditions  precedent  in  narrower,  sense,  582. 
Waiver  or  acquiescence  in  breach  of  condition,  584. 
By  impossibility  of  performance  in  general,  590. 
Performance  prevented   by   other  party,  598. 
Change  in  the  law,  593. 
Destruction   of   the   subject-matter,   595. 
Incapacity  for  personal  services,  596. 
By  operation  of  law,  599-606. 
Merger,   599. 

Alteration  of  written  instrument,  600-605. 
By  whoDi,  604. 
Intent,  604. 
Consent,  605. 
Loss   of   instrument,   605. 
Bankruptcy,  606. 
Remedies  on  breach  of  contract,  606-622. 
Recovery  of  money  paid,  590. 
Damages,   608-(Jn. 
Specific  performance,  CIL 
Injunction,   613. 


746  INDEX 

[The  figures  refer  to  pagea] 

DISCHARGE  OP  CONTRACT-Continued, 
Discharge  of  right  of  action,  614-622. 
By  consent  of  parties,   release,  614. 

Accord  and    satisfaction,   615. 
By  judgment,   617. 

Lapse  of  time,  statute  of  limitations,  619. 
Discharge  of  surety,  481. 
Effect  of  war,  182. 

DIVISIBLE  CONTRACTS, 

See  Indivisible  Contracts, 
What  are,  568. 
Effect  of  illegality,  408. 
Breach,  568. 

DIVORCE, 

Agreements  to  facilitate,  382. 

DRUNKEN  PERSONS, 

See  Insane  I'ersons. 
Capacity   to  contract,  233. 

Degree  of  intoxication,  234,   235. 
Contracts  created  by  law,  233-235. 
Contracts  for  necessaries,  235. 
Effect  of  being  under  guardianship,  235. 
Ratification  and  avoidance  of  contract,  235. 

Return   of  consideration,   235. 

Avoidance  as  against  third  persons,  235. 
DURESS, 

See  Undue  Influence. 
In  general,  297. 
Effect,  297,  304. 
Per  minas,  299. 
Of  imprisonment,  300. 
Of  goods,  302. 
Against  whom,  303. 
By  whom,  304. 

Refusal  to  perform  contract,  oOo. 
Recovery  of  money  paid  under  duress,  634. 


E 

EASEMENT, 

Statute  of  frauds,  94. 

ELECTION  OF  REMEDIES, 
Waiver  of  tort,  632,  646. 

ELECTIONS, 

Agreements  tending  to  impair  integrity  of,  363. 
ENEMIES, 

See  Aliens. 

ENLISTMENT, 
By  infant,  188. 

EQUITABLE   ASSIGNMENT, 

See  Assignment  of  Contract. 
EQUITY, 

Adequacy  of  consideration,  144. 

Necessity  for  consideration,  contract  under  seal,  73. 
Part  performance  of  contract,  statute  of  frauds,   115. 
Compelling  execution  of  writing,   118. 


INDEX  747 

[The  figures  refer  to  pages] 

EQUITY— Continued, 

Enjoining  breach,  613. 

Specific  performance,  611. 

Remedies  for  mistake,  257. 

Effect  of  fraud  of  infant,  220. 

Separate  estate  of  married  woman,  238. 

Equitable  estoppel  by  representation,  271. 

Equitable  assignments,  457-465. 

Extrinsic  evidence  as  to  interpretation  of  contracts,  500, 

ESCROW, 

Defined  and  discussed,  67. 

Parol  evidence,  4S9 

Delivery  of  deed,  statute  of  frauds,  113. 

ESTOPPEL, 

See  Laches.  ._  \ 

By  deed,  70. 
By  judgment,  60,  617. 
By  misrepresentations,  271. 
Of  infant,  221. 
Of  married  woman,  237. 

EVIDENCE, 

See  Interpretation  of  Contract. 
Parol  evidence,  statute  of  frauds,  101-113. 
Presumption  of  consideration,  139. 
Interpretation  of  contracts,  483-501. 
Agreements  for  suppression  of,  365. 

EXECUTED  CONTRACT, 
Defined,  1. 

Not  within  statute  of  frauds,  79. 
The  term  criticised,  8. 
Of  infant,  189. 

EXECUTORS  AND  ADMINISTRATORS, 

Acceptance  of  offer  on  behalf  of  estate,  46. 
Promise  to  answer  for  debts  of  estate,  81. 
Avoidance  of  contract  of  insanfe  person  by,  231, 

EXECUTORY  CONTRACT, 
Defined,  1. 

EXEMPTION, 

From  liability  for  negligence,  401. 


FAILURE  OF  CONSIDERATION, 

See  Consideration. 

FALSE  REPRESENTATIONS, 
See  Fraud  ;    Misrepresentations. 

FIDUCIARY  RELATIONS, 

See  Undue  Influence;    Unlawful  Agreementa. 

FOOD, 

Regulations  as  to  sales  of  food  products,  323, 

FORBEARANCE, 

See  Consideration. 

FOREIGNERS, 
See  Aliens. 


74S  INDEX 

[The  figures  refer  to  pages] 

FOREIGN  STATES  AND  SOVEREIGNS, 
Capacity  to  contract,  181. 
Actions  by  and  against,  181. 

FOIiM, 

See  Contracts  of  Record;    Contracts  under  Seal;    Frauds,  Statute  of. 
Detined,  58. 
Necessity,  58. 

Classitication  of  contracts,  58. 
Of  discharge  of  contract  by  agreement,  531. 

FRAUD, 

See  Duress;    Misrepresentation;    Quasi  Contract ;    Undue  Influence;    Un- 
lawful Agreements. 
In  general,  272. 

Distinguished  from  misrepresentation,  260. 
Distinguished  from  illegality,  320. 
What  constitutes,  273-290. 

Necessity  for  representation  of  fact,  273. 
Nondisclosure  of  facts,  273. 
Intention  not  to  fulfill  promise,  274. 
Concealment  of  facts,  275. 
Silence,  273. 

Mistake  as  to  nature  of  promise  known  to  other  party,  277. 
Character  of  representation,  279. 

Statement  of  opinion  or  expectation,  279. 
Statement  of  intention  or  promise,  2S0. 
Misrepresentation  of  law,  280. 
Materiality,  281. 
Right  to  rely  on  statements,  282. 
Caveat  emptor,  2~V). 

Credulity  and  negligence  of  party  defrauded,  283. 
Knowledge  of  falsity,  recklessness,  285. 
Intention,  286. 
Dishonesty  of  motive,  288. 
Representation  must  deceive,  288,  289. 

Injury  must  result,  290.  ^ 

Of  otticer  of  corporation,  379. 
Of  agent,  379. 
Of  infant,  220. 
Of  married  woman,  237. 
On  creditors,  317. 
Effect,  290. 

Remedies  of  party  defrauded,  290-297. 
On  affirmance,  291. 
On  rescission,  292. 

Limitations  to  right  to  rescind,  delay,  293-297. 
Acting  on  contract  after  knowledge  of  fraud,  293. 
Return  of  consideration,  and  placing  in  statu  quo,  294. 
As  against  third  persons,  295. 
Recovery  of  money  obtained  by  fraud,  634. 
_  Waiver  of  tort,  and  suit  in  assumpsit,  634,  646. 
Money  received  without  fraud,  636. 

FRAUDS,  STATUTE  OF, 
The  English  statute,  78. 

Quasi  contracts,  or  contracts  created   by   law,   79. 

Instruments  created  under,  and  deriving  obligation  from,  special  statutes,  79. 
Executed  contracts,  79. 
Promise  by  executor  or  administrator,  81. 

Promise  to  answer  for  debt,  default,  or  miscarriage  of  another,  81-89. 
Agreements  in  consideration  of  marriage,   89. 


INDEX  J49 

[The  figures  refer  to  pages] 
FRAUDS,  STAl'UTE  OF— Continued, 
Agreements  relating  to  land,  91-95. 

Crops  and  other  products  of  land,  93. 
Licenses  and   easements,  94. 
.Statutes  varying   from   English   statute,   95. 
Agreements  not  to  be  performed  within  a  year,  95-101. 
Possibility  of  performance,  95. 
I'art  performance,  99,  100. 
Particular  contracts,  100. 
Form   required  by  section  4,   memorandum,  101-113. 
Showing  as  to  agreement,  104. 
As  to  parties,  104. 
As  to  terms,  105. 
As  to  subject-matter,  107. 
As  to  consideration,  108. 
Separate  papers,  109. 
Signature,  llO-llo, 

By  agent,  112. 
Delivery,  113. 
Effect  of  noncompliance  with  section  4,  114-121. 

Part  performance  as  taking  contract  out  of  statute,  90,  99,  115-118. 
Recovery  on  implied  contract  for  part  performance,  119 
Conflict  of  laws,  121. 
Parol  contract  as  a  defense,  119. 
Who  may  plead  the  statute,  120. 
Waiver  of  statute,  120. 
Sales  of  goods,  etc.,  seventeenth  section,  121-132. 

Meaning  of  "goods,  wares,  and  merchandises"  122. 
Value,  124.  ' 

Work  and  labor,  124. 
Acceptance  and  receipt,  127. 
Earnest  and  part  payment,  130. 
Form  required  by  section  131,  132. 
Effect  of  noncompliance  with  section  132. 
FUTURES, 

Unlawful  intent  on  one  side,  418. 

G 

GAMING, 

A^alidity  of  contracts,  341. 

Insurance,  343. 

Premiums  or  purses,  343. 

Futures,  344. 

Loan  to  pay  gambling  debt,  418. 
GIFT, 

Not  a  contract,  8. 

Of  residue  on  part  payment  of  debt,  162. 
GOVERxN'MENT, 

See   States ;    United   States. 

Validity  of  agreements  affecting,  36L 
GRATUITOUS  PROMISES, 

See  Consideration;    Contracts  under  Seal 

Necessity  of  seal,  73. 

Effect  of  seal,  72. 

GUARANTY, 

Acceptance  of  offer,  29. 

Statute  of  frauds,  78. 

Memorandum  re<iuired  by  statute  of  frauds,  104. 


750  INDEX 

[The  figures  refer  to  pages] 

GUARDIAN  AND  WARD, 

Avoidance  of  contract  of  insane  person  by  guardian,  231. 
Contracts  by  drunken   person  under  guardianship,  235. 
Contracts  between,  undue  influence,  308. 

H 

rlUSBAND   AND   WIFE, 

See  Marriage  ;    Married  Women. 
Assignment  of  contract  by  marriage,  472. 
Antenuptial  debts  of  wife,  infant  husband's  liability,  187. 
Liability  for  necessaries  furnished  to  wife  or  child  of  infant,  19S. 
Contracts  of  married  women,  236. 

Wife  as  husbands  agent,  to  purchase  necessaries,  644. 
Agreements  in  derogation  of  marriage  relation,  380-3S4. 


IDIOTS, 

See  Insane  I'ersons. 

IGNORANCE, 

See  Mistake. 
Of  offer  or  acceptance,  22-34. 
Of  public  offer,  performance  of  services,  49. 
Of  terms  and  conditions  of  offer,  23. 
Of  insanity  of  party  to  contract,  229. 

ILLEGALITY, 

See  I  ulawful  Agreements. 

IMMORAL  AGREEMENTS, 
See  Unlawful  Agreements. 

IMPLIED  CONTRACTS, 

See  Quasi  Contract. 
The  term  explained,  20. 
Formation  by  conduct,  18-22. 
Distinguished  from  quasi  contract,  623. 
When  contract  implied  in  fact,  18-22. 

Relationship  of  parties,  20,  21. 

From  part  performance  of  contract  within  statute  of  frands,  119,  650. 
Of  corporation,  241. 
Discharge  of  contract  by  occurrence  of  implied  conditions,  536. 

IMrOSSIBILITY, 

Meaning  of  term,  166. 

Impossible  promise,  no  consideration,  168* 
Created  by  act  of  party,  as  a  breach,  562. 
As  a  discharge  of  contract,  590.  - 

Change  in  the  law,  593. 

Destruction  of  subject-matter,  595. 

Incapacity  for  personal  services,  596. 

IMPRISONMENT, 
See  Duress. 

IMPROVEMENTS, 

Effect  under  statute  of  frauds.  116. 

INCOMPLETE  NEGOTIATIONS, 
Are  not  contract,  52,  53. 

INDE^TURE, 
Defined    6<J. 


INDEX  751 

[The  figures  refer  to  pages] 

INDEPENDENT  PROMISES, 

See  Conditions. 

Whether  promises  dependent  or  independent,  565. 

INDIVISIBLE  CONTRACTS, 

See  Divisible  Contracts. 
What  are,  568. 
Effect  of  illegality,  407. 
Breach,  56S. 

INFANTS, 

Who  are,  185. 

Capacitj-  to  contract,  185. 

Appointment  of  agent,  191. 
Effect  of  emancipation,   186. 
Removal  of  disabilities,  186. 
The  old  doctrine  as  to  effect  of  contracts,  186. 
Valid  contracts,  187-189. 

Liability   for    wife's   antenuptial   debts,   187. 
Under  authority  or  direction  of  statute,  187. 
Doing  what  could  have  been  compelled,  188. 
Executed  contracts,   189. 

Contracts  for  necessaries,  rules  stated,  192-199. 
What  are  necessaries,  193-196. 
Must   concern   his   person,   196. 
Money,  197. 

Necessaries   furnished   wife   and   children,    198. 
Persons  supplying  infant  act  at  their  peril,  198, 
Question  of  law  or  fact,  198. 
Express  contract  and  securities,  199. 
Quasi  contract,  646. 
Void  contracts,  190. 
Voidable  contracts,   190. 

Ratification  and  avoidance  of  contract,  200-202. 
Ratification,  174. 

When   disaffirmance   necessary,  200-219. 
When   ratification   necessary,  201. 
Who  may  avoid  contract,  privilege  personal,  202. 
Time  of  avoidance,  204. 
Delay  in  avoiding,  204. 
What  amounts  to  ratification,  207. 
Implied    ratification,   209. 
Necessity    for  writing,    78,   209. 
What  amounts  to  disaffirmance,  211. 
Implied  disaffirmance,  211. 
Extent  of  ratification  or  disaffirmance,   212. 
Return  of  consideration,  213. 
Effect  of  ratification,  218. 
Effect  of  disaffirmance,  218. 
As  against  third  persons,  218. 
Torts  in  connection  with  contracts,  220,  223. 
Employment  in  violation  of  statute,  326. 

INJUNCTION, 

Against  breach  of  contract,  613. 

INSANE  PERSONS, 

Capacity  to  contract,  223-225. 
Contracts  created  by  law,  226. 
Effect  of  contracts,  226. 
Contracts  as  void  or  voidable,  227. 
Contracts   for    necessaries,   226. 


752  INDEX 

[The  figures  refer  to  pages] 

I^^SANE  PERSONS-Continued, 
Deed  and  power  of  attorney,  '2'27. 
Effect  of  inquisition  and  adjudication  of  lunacy,  228. 
Ignorance  and  good  faith  of  the  other  party,  229. 
liatificatiou  and  avoidance  of  contract,  231-233. 

Personal  privilege  as  to  avoidance,  231. 

Return   of  consideration,   232. 

Avoidance  as  against  third  persons,  232. 
Insanity  before  acceptance  of  ofifer,  lapse  of  offer,  46. 
Mental  w^eakness,  undue  influence,  311. 

INSOLVENCY, 

Promise  to  pay  debt  after  discharge  in  insolvency,  174. 
Frauds  on  creditors,  317. 

INSURANCE, 

Form,   writing,  77. 
Misrepresentations,  265. 
Insurable  interest,  344. 
Wagering  contracts,  341,  343. 

INTENTION, 

See  Acceptance  ;    Alteration  ;    Fraud  ;    Mistake  ;    Offer ;    Unlawful  Agree- 
ments. 
Must  be  expressed,  4. 
Must  be  distinct  and  common,  4. 
Must  be  communicated,  4. 
Legal  relations  must  be  contemplated,  50. 
Invitations  to  deal,  51. 
Offers  in  jest,  51. 
Fraudulent,  286. 
I'surious,  339. 

Sales  for  future  delivery,  344. 

Fraudulent  representations  as  to  matters  of  intention,  280. 
Alteration  of  instrument,  604. 

INTEREST, 
Usury,  333. 
Alteration  as  to,  G02. 
Insurable  interest,  344. 

INTERPRETATION    OF   CONTRACTS, 

In  general,  483. 

Rules  relating  to  evidence,  in  general,  484. 
Parol   evidence,  484. 
Province  of  court  and  jury,  484. 

Difference  between  formal  and  simple  contracts,  485. 
Proof  of  document,  480. 

Contracts  under  seal,  486. 
Simple  contracts,  487. 
Evidence  as  to  fact  and  validity  of  agreement,  488—490. 
As  to  terms  of  agreement,  490-501. 

Proof  of  supplemental^  or  collateral  terms,  492. 
Explanation  of   terms,  493. 
Evitic'ace  of  custom  or  usage,  495. 
To  add  a  term,  495. 

To  explain   terms,   495.  ' 

Requisites  of  custom  or  usage,  496. 
Evidence  as  to  terms  in  equity,  500. 
Rules   of  construction,   501-519. 
Question  for  court  or  jury,  502. 
In  general,  502. 
Subsidiary  rules,  500. 


INDEX  753 

[The  figures  reter  to  pag«fl] 

INTERPRETATION  OF  CONTRACTS— Continued, 
Terms  implied,  unexpressed  intention,  511. 
Rules  as  to  time,  511i. 
Penalty  or  liquidated   damages,  515. 
Joint  and  several  contracts,  519-521. 
Lfiabilities,  520. 
Subscriptions,  520. 
Rights,  521. 

INTOXICATING  LIQUORS, 

Sales  in  violation  of  statute,  327. 

INTOXICATION, 

See  Drunken  Persons. 

INVITATIONS  TO  DEAL, 

Distinguished  from  oSere,  QL 

J 

JEST, 

Offer  in  jest,  51. 

JOINT  AND  SEVERAL  CONTRACTS, 

See  Interpretation  of  Contract;    Operation  of  Contract. 
JOKE, 

Offer  in  jest,  51. 

JUDGMENTS, 

As  constituting  contract,  10,  60,  624. 
Estoppel  by,  61. 
Merger  of  cause  of  action,  6L 
Remedies  on,  62. 

K 

KNOWLEDGE, 

Of  revocation  of  offer,  42. 

Of  public  offer,  performance  of  services,  49. 

Of  falsity  of  representations,  285. 


LACHES, 

In  avoiding  contract  of  infant,  204. 

Of  insane  person,   231. 

Of  drunken  person,  233. 

On  the  ground  of   mistake,  258. 

On  the  ground  of  fraud,  293. 

On  the  ground  of  duress,  304. 

On  the  ground  of  undue  influence,  313, 
Acquiescence  in  breach  of  contract,  584. 
Discharging  right  of  action,  619. 

LANDLORD  AND  TENANT, 
Statute  of  frauds,  91,  100. 
Lease  in  violation  of  statute,  327. 
Covenants  affecting  leasehold  interests,  468, 

LAPSE, 

Of  offer,  44-^6. 

LEASE, 

See  Landlord  and  Tenant. 

Clabk  Co.NT.(3u  Ed.) — 48 


754  INDEX 

[The  figures  refer  to  pages] 

LEGALITY, 

See   Unlawful  Agreements. 

LEGAL  RELATIONS, 

Agreement  must  refer  to,  5,  7,  50. 
Offer  must  be  capable  of  creating,  50. 

LETTEKS, 

Acceptance  by  posting  letter,  31. 

As  memoranda  required  by  statute  of  frauds,  101, 

LEX  LOCI  AND  LEX  FORI, 

See   Conflict  of   Laws. 
LIBEL  AND  SLANDER, 

Unlawful  agreements,  317,  319. 

LICENSE, 

Statute  of  frauds,  94. 
Failure  to  procure,  325. 

LIMITATION  OF  ACTIONS, 
In  general,  619. 

Disabilities  and  exceptions,  620. 
Acknowledgment  and  new  promise,  174,  620. 

Writing,  77. 
Part  payment,  621. 
On  contracts,  71. 

LIMITING    LIABILITY, 

For  negligtnce,  401. 

LIQUIDATED  DAMAGES, 
Or  penalty,  515. 

LOANS, 

Usury,   333. 

For  illegal  purposes,  416. 

LOBBYING  CONTRACTS, 
Validity,    355. 

LOCUS  PGENITENTI.E, 

See  Unlawful  Agreements. 
LOSS, 

Of  instrument,   600. 

LOTTERIES, 
Validity,  346. 

LOVE   AND  AFFECTION, 
As  a  consideration,    135. 

LUNATICS, 

See  Insane  Persons. 

M 

MAIL, 

Acceptance  of  contract  by,  31. 

Death   of  proposer  after  acceptance,  48t 
Payment   by   mail,   546. 

MAINTENANCE, 
Defined,  370. 
Validity  of  contracts,  371. 

MARRIAGE, 

See  Husband  and  Wife ;  Married  Women. 

Not  a  contract,  8,  10, 
Assignment  by,  372. 


INDEX  755 

[The  figures  refer  to  pages] 

MARRIAGE— Continued, 

Marriage   brocage   contracts,    381. 

Agreements  in  consideration  of,  statute  of  frauds,  89. 

Part  performance,  90. 
Promise  to  marry,  statute  of  frauds,  89,  100. 
Consideration,  146. 
By  married  person,  383,  note. 
As   a   consideration,  145.  / 

Agreements   in   restraint   of,   384. 
MARRIED  WOMEN, 

See   Husband   and   Wife. 
Capacity  to  contract,  236-240. 
At   common   law,   236. 
In   equity,  238. 
Torts  in  connection  with  contract,  237. 
Equitable  separate  estate,   238. 
Common  law  changed   by  statute,  240. 
Promises  during  coverture,  ratification,  174. 
MASTER  AND  SERVANT, 

Contract  for  services,  statute  of  frauds,  101. 

Specific  performance,  613. 
Discharge  of  contract  of  employment,  535,  537. 
By  breach,  558. 
By  death  or  illness,  596. 
Enticing   away   servant,   441. 
Employment  of  infants,  326. 
Limiting  master's   liability  for  negligence,   401. 
Combinations  between  employes,  389. 
Combinations   between  employers,   400. 
MAXIMS,  ' 

Id  certum  est  quod  certum  reddi  potest,  55. 
Ex  dolo  malo  non  oritur  actio,  424. 

MEASURE  OF  DAMAGES, 

See  Damages. 

MEMORANDUM, 

Required  by   statute  of   frauds,   101,  131. 
MENTAL   INCAPACITY, 

See   Drunken  Persons;    Infants;   Insane   Persona. 
MERGER, 

Of  cause  of  action  in  judgment,  61,  617. 

Of  simple  contract  in  contract  under  seal,  71,  599. 

MINORS, 

See  Infants. 

MISREPRESENTATION, 

See  Fraud. 
In  general,  259. 

What  amounts  to  a  representation,  259. 
Distinguished  from  fraud,  259-261. 

From  conditions  and  warranties,  261-265, 
Effect,  265. 

Confidential   relations,  269. 
Contracts  of  suretyship,  269. 
P^ffect  in  equity,  270,  271. 
Estoppel   by,  271. 
Contracts  of  insurance,  265. 
Contracts  for  the  sale  of  land,  207. 
Contracts  to  purchase  shares  in  companies,  268. 


756  '  INDEX 

[The  figures  refer  to  pages] 

MISREPRESENTATION-Continued, 
By  infants,  220. 
By  married  women,  237. 
By  agent  as  to  authority,  270. 
MISTAKE, 

See  Fraud ;  Misrepresentation. 
In  general,  245. 

As  to  nature  of  transaction,  246-249. 
As  to  person  with  whom  contract  is  made,  249. 
As  to  subject-matter  of  contract,  251-255. 

Existence  of  subject-matter,  251. 

Identity  of  subject-matter,  253. 

Nature  and  essential  qualities  of  subject-matter,  253. 

As  to  quantity,  255. 

As  to  price,  255. 
As  to  nature  of  promise  known  to  the  other  party,  277,  278. 
Of  law,  256. 
Effect,  257. 
Remedies,  257,  258. 
Unlawful  agreements,  mistake  of  fact,  41L 

Mistake  of  law,  410. 
Alteration  of  instrument,  600. 
Payment  under,  637-639. 
Avoidance  of  contract  as  to  third  persons,  249. 

MODIFICATION, 

See   Alteration. 

MONEY  PAID, 

Recovery,  627. 

MONEY  RECEIVED, 

Recovery,  630-643. 

MONOPOLIES, 

Validity  of  combinations,  393— lOL 

MORALITY, 

See  Unlawful  Agreements. 

MORAL  OBLIGATION, 

As  consideration,  136,  170,  378. 

MOTIVE, 

Distinguished  from  consideration,  135. 

In  making  fraudulent  representations,  288. 

MUNICIPAL  CORPORATIONS, 

Resolution  of  city  council  as  memorandum  required  by  statute  of  frauds,  103 

MUTUALITY, 

Necessity,  145-150. 

MUTUAL  PROMISES, 
Consideration,  145. 

N 

NECESSARIES, 

See  Drunken  Persons;  Infants;   Insane  Persons;   Quasi  Contract 

NEGLIGENCE, 

See  Laches. 
Limiting  liability,   401. 
Of   party   defrauded,    247,   283. 
In  receiving  counterfeit  notes 'as  payment,  545,  note. 


INDEX  757 

[The  figures  refer  to  pages]  % 

NEGOTIABLE  INSTRUMENTS, 

See  Bills  and  Notes. 

NON  COMPOS  mp:ntis, 

See  Insane  Persons. 
NOTICE, 

Of  offer,  22-25. 

Of  acceptance,  27-34. 

Of  revocation  of  offer,  42. 

Of  assignment,  4G2, 
Priority,  465. 

Of  happening  .of  condition,  577, 
NOVATION, 

What   constitutes,  456,  526. 
NUDUM  i'ACTUM, 

See  Consideration ;  Promise. 

o 

OBLIGATION, 

See  Quasi  Contract. 
Defined,  6. 
Essentials,  6,  7. 
Sources  of,  9,   10. 

Concurrence  of  agreement  and  obligation,  7-13, 
OBSTRUCTING  JUSTICE. 

Validity  of  agreements,  364. 
OFFER, 

See  Acceptance. 
Necessity  of,  15. 
Forms  of,  16,  17, 
Communication   by   conduct,   18. 

Necessity   for   communication,   22,   23.  • 

Terms  partly  uncommunicated,  23,  24. 
Under  seal,  24,  25,  40. 
Kevocation  of,  oO— 44. 

Offer  under  seal,  40. 

Communication  of  revocation,  42-44. 

Agreement  to  keep  offer  open,  40,  41, 
Lapse  of,  44—46. 
Rejection  of,  45. 

To  guarantee  future  advances,  29.  ' 

To  the  public  generally,  47-50. 

Acceptance  and  revocation,  48. 

Performance  of  service  in  ignorance  of  offer,  49,  SOl 
As  referring  to  legal  relations,  50-57. 

Must   be  definite  and   certain,   54-56. 

Made  in  jest,  51. 

Distinguished   from  invitations   to   deal,  51. 

Incomplete  negotiations,  52. 
OFFICE  AND  OFFICER, 

Traffic   in  public   offices,   351. 

Agreements  affecting  compensation  of  officers,  352. 

Assignment  of  salary  or  pension  of  oOicer,  354. 

Corruption  of  public  officers,  356. 

Lobbying  contracts,  3-55. 

OPERATION  OF  CONTRACT, 

See  Assignment  of  Contract. 
In  general,  438. 


758  INDEX 

[The  figures  refer  to  pages] 

OPERATION  OF  CONTRACT-Continued, 
Limits   of  contractual    relation,    438-452. 
Agency,  439. 
Assignment,  439. 

Imposing  liability  on  third  persons,  440. 
Imposing  duty  on  third  persons  not  to  interfere,  44L 
Conferring  rights  on  third  persons,  442-452. 
Promise  for  benefit  of  third  person,  444. 
English   doctrine,  444. 
Massachusetts   doctrine,  445. 
New  York  doctrine,  448. 
Contracts    under   seal,   451. 
Statutory  exceptions,  451. 
Action  by  third  party  for  many  joint  contractors,  452. 
Joint  and  several  contracts,  475—482. 
Joint  contracts,  475. 
Release,  478. 
Survivorship,  477. 
Joint  promisees,  478. 
Release,  479. 
Survivorship,  479. 
Several  contracts,  479. 

Survivorship,  480.  •   . 

Contracts  both  joint  and  several,  480. 

Survivorship,  481. 
Contribution  between  joint  debtors.  481. 
Assignment   of   rights   and   liabilities,   4.J2-474. 
OPINION, 

Representations  as  to  matters  of  opinion,  279. 

OPTIONS, 

Revocation,  40,  41. 
Consideration,   mutuality,   148. 
To  terminate  contract,  537. 

ORAL  CONTRACTS, 

See  Acceptance;  Frauds,  Statute  of;  Interpretation  of  Contract;  Offer. 
Classification,  58. 


PAR  DELICTUM, 

\     See  Unlawful  Agreements. 

PARENT  AND  CHILD, 

Undue  influence,  307. 

Agreements  in  derogation  of  parental  relation,  384. 

PAROL  CONTRACTS, 
Defined,  59. 
Classification,  58. 

PAROL  EVIDENCE,  ^ 

See  Interpretation  of  Contract. 
Interpretation   of  contract,   483-501. 

PARTIES  TO  CONTRACTS, 

See  Drunken  Persons ;  Infants ;  Insane  Persons ;  Operation  of  Contract. 
Two  parties  necessary,  3,  6. 
Signature,  statute  of  frauds,  110-113. 
Showing  as  to,  statute  of  frauds,  104.  105. 
Mistake  as  to  Identity  of  party,  240. 
Must  be  definite,  6. 
Joint  and  several   liability,  475,   519. 


INDEX  759 

[The  figures  refer  to  pages] 

PARTIES  TO  CONTRACTS— Continued, 
Capacity   to  contract,   in  general,   56,  178. 

Political  status,  states  and  United  States,  178-180. 
Foreign  states  and  sovereigns,  181. 
Aliens,  181. 
Convicts,  183. 
Professional  status,  184. 
Infants,  185. 
Insane  persons,  223-233. 
Drunken  persons,  233-235, 
Married  women,  236-240. 
Corporations,   240-243. 
Limits  of  contractual  relations,  438. 
Imposing  liability  on  third   persons,  440. 
Conferring  rights  on  third  persons,  442-452. 
Assignment  of  rights  and  liabilities,  452-474. 
Consent  to  alteration,  605. 
Relationship  of,  307-311. 

PARTNERSHIP, 

Statute  of  frauds,  93. 

Avoidance  of  contract  of,  by  infant,  205. 

Dissolution  before  acceptance  of  offer  by,  46. 
PART  PAYMENT, 

To  take  contract  out  of  statute  of  frauds,  115,  130. 

In  satisfaction  of  debt,  161-166. 

After  limitations,  621. 
PART  PERFORMANCE, 

See  Discharge  of  Contract ;  Quasi  Contract ;  Frauds,  Statnte  of. 
PAST  CONSIDERATION, 

Discussed,  169. 

PATENTS  FOR  INVENTIONS, 

Assignment,  78. 
Monopolies  under,  397. 
PAYMENT, 

See   Assignment  of  Contract. 
What  constitutes,  544. 

By  negotiable  or  nonnegotiable  paper,  546. 
Application  of  payments,  548. 
Presumption    of,    619. 
Part  payment  in  satisfaction  of  debt,  161-166. 

After  limitations,  621. 
As  taking  contract  out  of  statute  of  frauds,  115,  130. 
Tender,  552. 
Recovery  of  money  paid  for  use  of  another,  627. 

On  failure  of  consideration,  589. 

Voluntary  payments,  635. 

Recovery   of  money  received  for  use  of  another,  630. 
PENALTY,' 

Or  liquidated  damages,  515. 
Distinguished  from  usury,  337. 
Sale  without  license,  327. 
PENSIONS, 

Assignment,  354. 
PERFORMANCE, 

See  Discharge  of  Contract;   Frauds,   Statute  of. 
Suit  for  specific  performance,  611. 
Acceptance  of  contract  by  performance,  28,  49. 
Part  performance,  647,  650. 


7C0  INDEX 

[The  figures  refer  to  pagea] 

PERILS   OF   THE    SEA, 

Effect,  536. 

PERJURY, 

Contract  to  procure  false  testimony,  364. 

PHYSICIAN, 

Power  to  contract,  185,  325. 

PLACE, 

Of  acceptance,  37. 

POLICE  POWER, 

Prohibiting  unlawful  agreements,  320. 

POLLICITATION, 
Defined,  26. 

POSSESSION, 

Effect  under  statute  of  frauds,  116. 
As  evidence  of  delivery  of  deed,  67. 

PREMIUM, 

Offer  of,  legality,  343. 

PRESUMPTION, 

As  to  delivery  of  deed,  67. 
Of  consideration,  138,  130. 
Of   undue   influence,   307. 

PRIEST  AND   PARISHIONER, 

Undue   influence,   309. 

PRINCIPAL   AND   SURETY, 
See  Suretyship. 

PRIORITIES, 

Between  assignees,  465. 

PRIVILEGE, 

Personal  privilege  to  avoid  contract,  infants.  202. 
Insane  persons,  231. 

PROMISE, 

Defined,  11. 
Essentials,  11,  12. 

Offer  of  promise  for  promise,  30,  31. 
As  consideration  for  promise,  145. 
Fraudulent,  280. 

New   promise  to  pay  debt  after  discharge  in  bankruptcy,  174, 
After  bar  by  limitations,  620. 

PROOF, 

See  Interpretation  of  Contract. 

PROPOSAL, 

See  Offer. 

PUBLIC   POLICY, 

See  Unlawful  Agreement*. 


QUANTUM  MERUIT, 
See  Quasi  Contract. 

QUASI  CONTRACT, 
In  general,  9,  623. 
Judgments,  619,  624. 
Obligation  imposed  by  statute,  G25. 
Money  paid  for  the  use  of  another,  627. 


INDEX  761 

[The  figures  refer  to  pages] 

QUASI  CONTRACT-Continued, 

Money  received  for  the  use  of  another,  630. 

Debts  arising  from  tort,  waiver  of  tort,  632. 

Money  obtained  by  fraud  or  duress,  634. 
Liability  of  third  persons,  636. 
Money  obtained  without  fraud  or  wrong,  636. 

Voluntary  payment,  635. 

Money  paid  under  mistake,  637. 

Failure  of  consideration,  640. 

Money  paid  under  illegal  agreement,  642. 

Money  paid  under  unenforceable  contract,  642. 

Money  paid  under  ultra  vires  contract,  643. 
Recovery  for  benefits  conferred,  quantum  meruit,  644-651. 

Liability  for  necessaries,  199,  644. 

Forcing  benefit  upon  another,  645. 

Benefits  rendered  gratuitously,  646. 

Goods  wrongfully  obtained,  waiver  of  tort,  646. 

Part  performance  of  contract,   647. 

Retaining  benefits,  649. 

Part  performance  of  illegal  contract,  650. 

Part  performance  of  unenforceable  or  void  contract,  650. 

On  rescission  of  coi\tract,  651. 
Part  performance  of  contract  within  the  statute  of  frauds,  119. 
Liability  of  corporation,  receipt  of  benefit  under  ultra  Tires  contract,  242. 
Liability  of  infants,  187,  199. 
Liability  of  insane  persons,  220. 
Liability  of  drunken  person,  235. 
Statute  of  frauds  not  applicable,  79. 

R 

RAILROAD  COMPANIES, 

Unlawful   agreements,  358. 

Limiting  liability  for  negligence,  401. 

RATIFICATION, 

See  Drunken  Persons;    Duress;    Fraud;    Infants;    Insane  Persons. 
Consideration,  174. 
After  knowledge  of  fraud,  291. 
Of  contract  of  married  woman,  174. 

Of  infant,  200. 

Of  insane  person,  231-233. 

Of  drunken  person,  233. 
Of  Sunday  contract,  332. 
Of  alteration,   605. 

REALITY  OF  CONSENT, 

See  Duress;    Fraud;    Misrepresentation;    Mistake;    Undue  Influence. 
In  general,  244,  245. 

RECOGNIZANCE, 
Defined,  62. 
As  a  contract  of  record,  62. 

RECORDS, 

See  Contracts  of  Record. 

REFORMATION. 
Of  contract,  258. 

REFUSALS, 

Agreement  to  keep  proposal  open,  revocation,  40,  41. 
Consideration,  mutuality,   145. 


762  INDEX 

[The  figures  refer  to  pages] 

RELEASE, 

See  Accord  and  Satisfaction;    Composition   with  Creditors;    Compromise; 
Discharge  of  Contract;    Payment. 
On  part  payment,  161-1G6. 
Of  joint  debtor,  478. 
As  against  joint  creditor,  478. 
Of  right  of  actioB,  G14. 

REMEDIES, 

See  Action;    Duress;    Equity;    Fraud;    Mistake;    Quasi  Contract. 

RENUNCIATION, 

See  Breach  of  Contract. 

REPRESENTATIONS, 

See  Fraud;    Misrepresentation.  , 

RESCISSION, 

See  Discharge  of  Contract;    Drunken  Persons;    Duress;    Fraud;    Infants, 
Insane  Persons;  Mistake;  Revocation;  Undue  Influence. 
On  ground  of  fraud,  292. 
Because  of  other's  unlawful  purpose,  419. 
Recovery  for  part  performance,  647. 
Contract  to  rescind,  not  within  statute  of  frauds,  123. 

RES  JUDICATA, 

See  Judgment. 

RESTRAINT  OP  MARRIAGE, 
Agreements  unlawful,  380. 

RESTRAINT  OF  TRADE, 

Validity  of  agreements,  384-401. 

Consideration,   72. 

Reasonableness,  385. 

Unlimited  as  to  space,  388. 

Unlimited  as  to  time,    389. 

Sale  of  secret  process,  392. 
Monopolies,  393^01. 

RETURN  OF  CONSIDERATION, 

See  Consideration.  ' 

REVIVAL, 

Of  debt  discharged  by  bankruptcy,   174. 

Of  debt  barred  by  limitations,  620. 

REVOCATION, 
Of  offer,  39-44. 

Communication,  40. 

To  the  public  generally,  48. 

Agreement  to  keep  offer  open,  40. 

REWARD, 
Offer  of,  47. 

Acceptance,  29,  48. 

Revocation,  48. 

Legality,  343. 
Recovery  by  public  officer,  352. 

RIGHT  OF  WAY, 

Statute  of  frauds,  95. 


SALES, 

See    Conditions;     Fraud;     Frauds,    Statute   of;     Misrepresentation;     Mistake; 
Quasi  Contract;    Warranty. 


INDEX  763 

[Tke  figures  refer  to  pages] 
SATISFACTION, 

See  Accord  and  Satisfaction;    Composition  with  Creditora;    Compromise;    Dis- 
charge of  Contract;     Payment;    Release. 

SEAL, 

See  Contract  under  Seal, 
Defined,  63-64. 
Necessity  on  deeds,  63. 
Adding  or  effacing,  602. 
Use  of  by  corporation,  241. 

SEPARATE  ESTATE, 

Of  married   woman,   238. 

SEPARATION  AGREEMENTS, 

Validity,  382. 

SERVICES, 

Contract  for,  statute  of  frauds,  101. 

Distinguished   from  sale,  124. 
Gratuitous  employment,  139. 
Employment  of  infants,  326. 
Specific  performance  of  contract  for,  613. 
Discharge  of  contract  for,  536,  537. 

By  breach,  557. 

P>y  renunciation,  557. 

By  death  or  illness,  596. 
Promise  to  pay  for  past  services,  171. 
Acceptance  of  contract  by  performance  of,  28, 
Acceptance  of  services  performed,  50. 

SEVERABLE  CONTRACTS, 

See  Divisible  Contracts;    Indivisible  Contracts. 
SEVERAL  CONTRACTS, 
See  Operation  of  Contract. 

SICKNESS, 

Discharge  of  contract  by,  596. 
SIGNATURE, 

Statute  of  frauds,  110,  112, 

SIMPLE  CONTRACTS, 

Classification,  58. 

Defined,   59. 

Interpretation,  487. 

Merger  in  contract  under  seal,  71. 

Limitation  of  actions,  71. 

SPECIALTY, 

See  Contracts  under  SeaL 
Defined,  62. 

SPECIFIC  PERFORMANCE, 
In  general,  611. 
Contract  with  infant,  203. 
Mistake,  258. 

SPENDTHRIFT, 

Capacity  to  contract,  234, 

STATES, 

Power  to  contract,  148. 
Construction  of  contracts  with,  179i 
Actions  by  or  against,  179. 

STATUTE  OF  FRAUDS, 
See  Frauds,  Statute  of. 


764  INDEX 

[The  figures  refer  to  pages] 

STATUTE  OF  LIMITATIONS, 

See  Limitation  of  Actions. 

STOCK  SPECULATION, 
See  Unlawful  Agreements. 

STRIKES, 

See  Ilnlawful  Agreements. 

SUBSCRIPTIONS, 

Consideration,  147. 

Joint  or  several  liability,  519, 

SUBSIDIARY  PROMISES, 

See   Conditions;     Warranty. 
What  are,  261r  574. 
Breach,  574. 

SUBSTITUTED  AGREEMENT, 

Consideration,  158. 

As  discharge  of  contract,  526. 

SUIT, 

See  Action. 

SUNDAY  LAWS, 

Legality  of  contract,  32S-333. 

SURETYSHIP, 

Statute  of  frauds,  81. 
Misrepresentation,  2C9. 
Right  of  surety  against  principal.  48L 
Contribution  between  cosureties,  481. 

SUSPENSORY  CONDITIONS, 
In  general,  576. 


TELEGRAMS, 

As  memoranda  required  by  statute  of  frauds,  103. 
Acceptance  of  contract  by  telegraph,  33. 

TELEGRAPH   COMPANIES, 
Limiting  liability,  404. 

TENDER, 

What  constitutes,  552. 
Effect,  552, 

TERMINATION  OF  CONTRACT, 

See  Discharge  of  Contract. 

THIRD  PERSONS, 

See   Operation   of  Contract. 
Avoidance  of  contract  as  against,  by  infant,  219. 

By  insane   person,   232. 

By  drunken   person,   234. 

For  want  or  failure  of  consideration,  139. 

For  fraud,  etc.,  295. 

For  mistake,   247. 
Right  to  avoid  contract  with  infant,  202. 

Insane  persons,  231. 

For  duress,  304. 
Liability  for  inducing  breach  of  contract,  441. 
Rec-eipt  of  money  or  property  by,  implied  contract,  636. 


INDEX  765 

[The  figures  refer  to  pagea] 

TIME, 

Of  acceptance,  37. 

Lapse  of  offer,  44. 
For  performance  of  contract,  54.3. 
For  avoidance  of  contract  of  infant,  204. 

Of  insane  person,  2.31. 

Of  drunken  person,  235. 

For  mistake,  258. 
Rules  as  to,  time  of  essence,  512. 

TORT, 

See  Unlawful  Agreements. 
Distinguished  from  contract,  9. 

Of  married  woman  in  connection  with  contract,  2SQ, 
Of  infant  in  connection  with  contract.  220. 
Waiver  and  suit  in  assumpsit,  632,  646. 

TRADE  SECRETS, 
Sale  of,  392. 

TRUSTS, 

Not  contract,  9. 

Undue  influence  over  cestal  que  trust,  308. 

u 

UNCERTAINTY, 

See  Certainty. 

UNDUE  INFLUENCE, 

See  Duress;    Fraud. 
In  general,  305. 
Effect,  305,  313. 

Presumption  from  circumstances,  307,  310. 
Relationship  of  parties,  307-311. 

Parental  and  quasi  parental  relation,  307, 

Other  family  relations,  308. 

Fiduciary   relations,   308. 

Other  confidential  relations,  309. 
Continuance  of  presumption,  310. 

Rebuttal  of  presumption,  311. 
Mental  weakness.  311. 

Personal  influence  absent,  advantage  taken  of  another's  weakness  and  distres? 
311. 

UNENFORCEABLE, 

Meaning  of  term,  12. 

UNITED  STATES, 

Power  to  contract,  178. 
Actions  by  or  against,  178. 
Construction  of  contracts  with,  178. 

UNLAWFUL  AGREEMENTS. 
In  general,  314. 
Classification,  315. 

Agreements  in  violation  of  positive  law,  315. 
Breach  of  express  rules  of  common  law,  316-320. 
Involving  commission  of  crime,  316. 
To  commit  civil  wrong,  317. 
Frauds   on   creditors,   317. 
Fraud   in  connection  with  auction  sales,  318. 
Publication  of  libel,  319. 


766  INDEX 

[The  figures  refer  to  pages] 

CXLAWFUL  AGREEMENTS— Continued, 

Broach  of  statute,  powers  of  legislature,  320-348. 

Constitutional   limitations  on   powers  of  legislature,   320. 
The  prohibition  by  statute,  321. 
Mala  in  se  and  mala  prohibita,  321. 
Effect  of  penalty,  322. 
Omission  of  penalty,  323. 

Doing  indirectly  what  cannot  be  done  directly,  323. 
Agreements  prohibited  but  declared  not  void,  324. 
Agreements  simply  void  and  unenforceable,  324. 
Regulating  trade,  profession,  or  business,  325. 
Necessity  of  license,  325. 
Traffic  in  intoxicating  liquors,  327. 
•    Sunday  laws,  328-333. 

Works  of  necessity  or  charity,  329. 

Incomplete  transactions,  331. 

Ratification.  332. 
Usury  laws,  333-341. 
Wagers  and  gambling  transactions,  341-348. 

Offer  of  premium  or  reward,  343. 

Contracts  of  insurance,  343. 

Dealings  in  futures,  344. 

Lotteries,  346. 
Agreements  contrary  to  public  policy,  in  general,  348-350. 
Tending  to  injure  the  public  service,  350-361. 

Traffic  in  public  offices,  351. 

Compensation  of  public  officers,  352. 

Assignment  of  salary  or  pension  by  officer,  354. 

Lobbying  contracts,  355. 

Corruption  of  public  administrative  officers,  356. 

Agreements  by  public  or  quasi  public  corporations,  358. 
Agreements  affecting  the  government,  361. 
Agreements  promotive  of  nonofficial  corruption,  362. 

Breach  of  public  duty  by  private  citizen,  362. 

Impairing  integrity  of  public  elections,  363. 
Perversion  or  obstruction  of  public  justice,  in  general,  364. 

Compounding  crime,  366. 

Reference   to  arbitration,  367. 
Encouragement  of  litigation,  champerty  and   maintenance,  370-376. 
Agreements  of  immoral   tendency,  376,   377. 
Agreements  tending  to  fraud  and  breach  of  trust,   in   general,  378-380. 

By  officer  of  corporation,  379. 

By  agent,  379. 
In  derogation  of  the  marriage  relation,  380-384. 

Restraint  of  marriage,  380. 

Marriage   brocage,   381. 

Separation  agreements,  382. 

Agreements  to  facilitate  divorce,  382. 

Other  agreements,  383. 
In  derogation  of  parental  relation,  384. 
Restraint  of  trade,  384-401. 

Consideration,  seal,  73. 

Reasonableness  of  restraint,  385. 

Unlimited  as  to  space,  388. 

Unlimited  as  to  time,  389. 

Sale  of  secret  process,  392. 

Agreement  to  assign  future  patents,  392. 

Unlawful   combinations,   monopolies,   trusts,   etc.,  393-40L 

"Corners"  in  the  market,  397. 

Monopolies  under  patents,  397. 


INDEX  767 

[The  figures  refer  to  pages] 
UNLAWFUL  AGREEMENTS— Continued, 

Combinations  between  laborers,   mechanics,   etc.,  398. 
Combinations  between  emploj'ers,  400. 
Exempting  from  liability   for  negligence,  401-405 
Effect  of  illegality,   405-432. 

Agreements  partly  illegal,  405-410. 
Indivisible    agreements,    407. 
Divisible  agreements,  408. 
Direct  object  unlawful,  but  intention  innocent,  410^12. 
Mistake  of  law,  410. 
Mistake  or  ignorance  of  fact,  411. 
Direct  object  innocent,  but  intention  unlawful,  412 
The  English  rule,  413. 
The  rule  in  America,  413. 

Distinction  where  illegal  act  is  past,  417,  note. 
Unlawful  intention  on  one  side  only,  418. 
Promises  to  pay  money  due  or  to  become  due  on  illegal  transactions,  41&- 
422. 
Distinction  between  "void"  and  "illegal,"  419. 
Negotiable  instruments,  421. 
Relief  of  party  to  unlawful  agreement,  423-432. 
Ex  dolo  malo  non  oritur  actio,  424. 
Locus  pcenitentise,  425. 
Par  delictum,  428. 

Rights  of  factors,  brokers,  and  other  agents,  430. 
Recovery  upon  quantum  meruit,  431. 
Recovery  of  money  paid,  642. 
Illegality  distinguished  from  fraud,  320. 
Conflict  of  laws,  432. 
As  to  space,  432. 
As  to  time,  change  of  law,  432. 
Part  performance,   650. 

UNLIQUIDATED  CLAIM, 

Consideration  of  discharge,   164. 
USAGE, 

See  Custom  and  Usage. 
USURY, 

-In  general,  333-341. 
Loan  of  money,  334. 
Principal  absolutely  repayable,  336. 
Contract  for  more  than  legal  rate  of  interest,  337, 
Unlawful  intent,  339. 
Effect  of  National  Banking  Act,  340. 


VAGUENESS, 

See  Certainty. 
VARIANCE, 

Between  offer  and  acceptance,  38. 
Lapse  of  offer,  44. 

VENDOR   AND   PURCHASER, 

See   Conditions;     Fraud;     Frauds,    Statute    of;     Misrepresentation;     Mistake; 
Warranty. 

VOID, 

See  specific  heads  such  as  Drunken  Persons,  Infants,  etc. 
Meaning  of  term,  12. 
Distinction  between  "void"  and  "illegal,"  419. 


768  INDEX 

[The  figures  refer  to  pages] 

VOIDABLE, 

See  specific  heads  such  as  Drunken  Persons,  Infants,  ete. 
Meaning  of  term,  12. 

w 

WAGERS, 

See  Unlawful  Agreements. 
Validity,  341-347. 

WAIVER, 

See  Discharge  of  Contract. 
Of  written  contract,  statute  of  frauds,  80. 
Of  statute  of  frauds,  120. 
Of  discharge  from  liabilitj,  173. 
Of  breach,  584. 
Of  tort,  632,  646. 

WAR, 

Effect  on  contracts  with  aliens,  182. 

WARRANTY, 

Distinguished  from  representation,  261. 
Distinguished  from  condition,  261,  582. 

WEIGHTS  AND  MEASURES, 

Sales  without  use  of  approved  weights  or  measures,  325. 

WILLS, 

As  memorandum  required  by  statute  of  frauds,  103. 

WITNESSES, 

Agreements  tending  to  induce  perjury,  364. 

WRITTEN  CONTRACTS, 

See  Frauds,  Statute  of. 
Necessity  for  writing,  76-113. 
Deeds,  63. 

Negotiable   instruments,  77. 
Assignment   of   patent  or  copyright,   78. 
Acceptance  of  bill  of  exchange  or  order,  77. 
Insurance,  77. 

Acknowledgment  of  barred  debt,  78. 
New  promise  by  infant,  78. 
Conveyances  of  land,  78. 
Waiver,  statute  of  frauds,  80. 


WEST  PUBLISHING  CO.,  PiONTERS,  ST.  PATTL,  MINN. 


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UNIVERSITY  OF  CALIFORNIA,  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 

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